MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:                 

	BOARD DATE:                     15 August 2002     
	DOCKET NUMBER:            AR2002070609

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  In essence, that his character of service, under conditions other than honorable (UCOTH) discharge be changed to honorable.  He dates the discovery of the alleged error or injustice as 2 February 2002 and that the Board should excuse the failure to timely file because he is totally disabled.  He claims that he was absent without leave (AWOL), because his mother was in poor health and he was denied time off.

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 are limited in that they do not contain several separation processing documents.  However, his record shows that he enlisted in the Regular Army on 4 November 1971 for 
3 years.  He completed both basic combat training and basic airborne training at Fort Campbell, Kentucky on 23 February 1972.  On 24 February 1972, he began both on the job training and advanced individual training at Fort Bragg, North Carolina.  

On 1 August 1972, a physical examination found the applicant qualified for separation with a physical profile of 111111.

The applicant was convicted by a special court-martial (SPCM) of four specifications of being AWOL, from 11 to 15 May 1972, from 19 to 23 May 1972, 
From 1 to 5 June 1972 and from 9 June to 26 July 1972.  He was sentenced to forfeiture of $100.00 pay per month for 5 months and confinement to hard labor for 5 months, suspended for 10 days effective 8 September 1972, unless sooner vacated.  The sentenced was adjudicated on 20 August 1972.

On 8 September 1972, Department of Army, Headquarters, US Army Engineer Center and Fort Belvoir, Virginia issued Special Orders Number 179 to effectively separate the applicant under the provisions of Army Regulation 635-200, chapter 10, for the good of the service UCOTH.  

He was issued an Undesirable Discharge Certificate.  His DD Form 214 shows that he had 6 months and 23 days of creditable service and 103 days of lost time due to AWOL and confinement.  The highest pay grade he attained was E-1.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 8 September 1972, the date he was discharged from active duty and signed his DD Form 214.  The time for the applicant to file a request for correction of any error or injustice was 8 September 1975.

The application is dated 2 February 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 recommended 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

___JNS _  __ INW __  ___JAM    CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002070609	
SUFFIX		
RECON		
DATE BOARDED	2002.08.15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	A01.33	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A144.04	
2.		
3.		
4.		
5.		
6.