MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           04 JUNE 2002                  
	DOCKET NUMBER:   AR2002070572

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his bad conduct discharge be upgraded to an honorable discharge.  He states he was a good soldier, the top soldier in his platoon, and never had one complaint against him.  However, after being harassed by a sergeant for more than a year he pushed the sergeant out of his room.  He notes he did not hurt the sergeant and that his 3 years of good service should outweigh the single incident of pushing the sergeant out of the room.  He maintains that the bad conduct discharge was unjust for this single offense after 3 years of good service.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 5 August 1980.  The applicant successfully completed basic and advanced individual training and in February 1981 was assigned as a helicopter repairman to a unit in Hawaii.  In March 1981 he was promoted to pay grade E-2 and in August 1981 was promoted to E-3.

On 1 June 1983 the applicant was convicted by a special court-martial of two counts of possession and distribution of marijuana, two counts of using disrespectful language toward a sergeant, and one count of assault.  The court-martial order specifically notes that the applicant assaulted a sergeant by "shoving him up against a wall locker and striking at him in the face with his fist, and shoving him out of the room…."

The applicant's sentence included 3 months confinement, reduction to pay grade E-1, forfeiture, and a bad conduct discharge.

The applicant was placed in an excess leave status in August 1983 following release from confinement and on 24 August 1984 the bad conduct discharge was executed.

Army Regulation 635-200 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, and the applicant has not provided any, which would serve as a basis to upgrade his bad conduct discharge to an honorable discharge.  Contrary to the applicant's contention his bad conduct discharge was the result of more than just pushing a sergeant out of his room.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 August 1984, the date the applicant's discharge was executed.  The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1987.

The application is dated 11 March 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __AAO __  __RK   __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002070572	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020604	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.