MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 JUNE 2002                   
	DOCKET NUMBER:   AR2002071044

	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. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 other than honorable conditions discharge be upgraded to a general discharge.  He states that he was told he could have the discharge upgraded but makes no statements and submits no evidence in support of 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 on 5 May 1977, at the age of 21, with 12 years of formal education and a GT (general technical) score of 99.  He successfully completed basic, advanced individual, and airborne training without incident.  In October 1977 he was assigned to Fort Lewis, Washington.

On 10 November 1977 the applicant departed AWOL (absent without leave) and was dropped from the rolls of the Army on 9 December 1977.  On 1 January 1978 he returned to military control.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the under other than honorable conditions discharge which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

In a self-authored statement the applicant indicated that following basic, advanced individual, and airborne training he arrived at his "regular unit" and discovered that he "had to train the rest of [his] four year enlistment."  He stated that he thought "all you had to do was go through ranger school and the rest would be kind of like a regular job."  He noted that he tried to talk to his commander but "didn't get to talk to him" so he just went home.  He stated that he knows he would never adjust to military life and while the Army would be good for people who liked it, it was not for him and as such he requested to be discharged.

His request was approved and on 26 January 1978 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

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.

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 for the Board to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 26 January 1978, the date applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 26 January 1981.

The application is undated but was received by the Board in 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

__KAK __  __MHM__  __ALR __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071044	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020618	
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.