MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 JULY 2002                   
	DOCKET NUMBER:   AR2002071249

	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. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		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 a general discharge.  He states he received a bad conduct discharge but believes it should have been a general discharge.  He notes that he received "forms to fill out but they were destroyed by a house fire."  He 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 June 1969, at the age of 20, with 11 years of formal education.  He successfully completed basic and advanced individual training and received excellent conduct and efficiency ratings.  In November 1969 he arrived in Vietnam where he was assigned duties as a senior field switchboard operator and was promoted to pay grade E-3.

On 31 March 1970, while on emergency leave from Vietnam, the applicant was reported as AWOL (absent without leave) and subsequently dropped from the rolls of the Army.  He was apprehended by officials from the FBI (Federal Bureau of Investigation) and returned to military control on 18 July 1973.

On 5 September 1973 the applicant was convicted by a general court-martial as a result of his AWOL.  His sentence included 4 months confinement at hard labor, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge.  The applicant was discharged under "conditions other than honorable" on 13 December 1973 and issued a Bad Conduct Discharge Certificate.  At the time of his separation he had nearly 10 months of active Federal service and more than 1300 days of lost time due to AWOL and confinement.

The applicant indicated in his application that he received "forms to fill out" and may be referring to Presidential Proclamation 4313.  President Ford issued this proclamation in September 1974.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were: 

    1) civilian fugitives who were draft evaders,
    2) members of the military who were still AWOL, and
    3) former military members who had been discharged for desertion, AWOL or          missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  For those who elected to earn a clemency discharge, (AWOL's and discharged members) they could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  In any event, the clemency discharge did not affect the individual's underlying discharge, and did not entitle him to any VA benefits.  There is no evidence the applicant applied for clemency under this program or that he ever completed any alternate service, which would qualify him for a clemency discharge.  At any rate, even if the applicant had been granted a clemency discharge he would not have been entitled to any VA benefits, if that were the reason he is now seeking to have his discharge upgraded.

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 discharge.  

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 December 1973, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 13 December 1976.

The application is dated 19 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

__TSK __  __JTM __  __HBO______  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071249	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020711	
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.	110.00	
2.		
3.		
4.		
5.		
6.