MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 JUNE 2002                   
	DOCKET NUMBER:   AR2002070606

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 "under conditions other than honorable" discharge be upgraded.  He states that he was not AWOL (absent without leave) for the amount of time recorded.  He submits no evidence to support his request.

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 in August 1967.  Records available to the Board indicate he had two periods of AWOL between January and March 1970, while assigned to a unit in Vietnam.  

In August 1970, following completion of his tour of duty in Vietnam, the applicant was again reported AWOL.  He returned to military control in June 1971 and was placed in confinement.  He was released from confinement on 16 July 1971 and assigned to a unit at Fort Hood, Texas.  On 26 July 1971 he again departed AWOL and was dropped from the roles of the Army.  He returned to military control on 18 October 1971 and was subsequently discharged "under conditions other than honorable" on 24 November 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Documents associated with the applicant's administrative separation were not in records available to the Board.  The applicant's 1971 separation document indicates he had a total of 3 years and 4 days of creditable service and more than 400 days of lost time due to AWOL and confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.

In the absence of evidence to contrary the Board presumes regularity in the applicant's discharge proceedings.  The Board notes that the lost time reflected on the applicant's 1971 discharge document was the result of both AWOL and confinement time, not just his periods of AWOL.

There is no evidence, and the applicant has not provided any, which would serve as a basis to upgrade the character of his discharge.  

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 November 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 24 November 1974.

The application is dated 5 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

__RVO__  __RWA__  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002070606	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020620	
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.