MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 December 2002                  
	DOCKET NUMBER:   AR2002070704

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able  		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Bernard P. Ingold		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 effect that his discharge be upgraded.  He alleges that his recruiter told him not to reveal that he had a pre-service felony conviction prior to service.  He states that his service was honorable and he deserves the upgrade.  

The applicant indicates that the date of discovery of the alleged error or injustice was 8 February 1971.  He states because he has had a brain injury that makes it difficult to do or remember things.  It would be in the interest of justice for the Board to consider this application.

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:

The applicant entered active duty on 1 September 1970.  He completed basic combat training, advanced individual training, and was assigned to Ft. Leonard Wood, Missouri.

He received nonjudicial punishment (NJP), on 8 December 1970, for being absent without leave (AWOL) from 23 November through 8 December 1970; and, on 15 December 1970, for having alcohol (beer) in the company area.  There is a second reported period of AWOL, 11 January through 13 January 1971, but the adjudication is not of record. 

A 15 December 1970 DA 268 (Report for Suspension of Favorable Personnel Actions) indicates that the applicant was under investigation for possible fraudulent entry.

A 29 January 1971, DA 268 shows that the applicant was placed in a no pay status due to a determination that he had fraudulently entered the service. 

There is no discharge packet on record.  The applicant's DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 8 February 1971, general discharge for misconduct, fraudulent entry.

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 8 February 1971, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 8 February 1974.

The application is dated 13 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_RWA __  __KYF___  __BPI ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070704	
SUFFIX		
RECON		
DATE BOARDED	20021212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.	
2.		
3.		
4.		
5.		
6.