MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 JULY 2002                   
	DOCKET NUMBER:   AR2002071347

	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		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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:  In effect, that his undesirable discharge be upgraded. He states that he was not allowed to go on leave to attend a funeral and "so went AWOL [absent without leave]."  The applicant's DD Form 149 (Application for Correction of Military Record) is dated 28 March 2001, but was submitted with a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) dated 29 March 2002.  On the DD Form 293 the applicant indicated that he was not permitted to attend the funeral of his "best friend" so went AWOL.  He also notes that as he is older now, he would like to pursue any benefits that he might utilize as a result of his "good years of service." 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 was inducted on 15 January 1963, at the age of 21, with 10 years of formal education.  He was granted a moral waiver for gas theft in 1960, and consumption of alcohol by a minor in 1962, in order to be inducted.

The applicant successfully completed basic and advanced individual training.  He received excellent conduct and efficiency ratings while in training.  He was promoted to pay grade E-2 in May 1963 and in June 1963 was assigned to Fort Ord, California.

The applicant departed AWOL on 17 July 1963 and returned to military control on 15 August 1963.  He was convicted by a special court-martial as a result of the AWOL charge.  In March 1964 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for 4 days of AWOL in March 1964.  The applicant again departed AWOL in April 1964 and returned to military control in July.  He was convicted by a special court-martial as a result of the AWOL.

While in confinement, which was part of his second court-martial sentence, the applicant's commander initiated action to administratively separate the applicant from the Army, under the provisions of Army Regulation 635-208, for unfitness.  The applicant acknowledged receipt of the proposed separation, consulted with counsel, and acknowledged that he understood that as a result of his "other than honorable" discharge, he could be deprived of many rights and benefits as a veteran under both Federal and State law.

The commander cited the applicant's more than 200 days of lost time, two special courts-martial, and difficulty with civilian authorities, as the basis for his recommendation.

The recommendation was approved and on 19 November 1964 the applicant was discharged "under conditions other than honorable."  He was issued an undesirable discharge certificate.

Information from an FBI file, contained in the applicant's record, indicates that he was charged with possession of marijuana on two occasions in 1968.  The disposition of those charges is not reflected on the FBI document.

In 1988 the applicant appealed to the Army Discharge Review Board to have his discharge upgraded.  The results of that appeal were not in records available to the Board.  A review of the Army Discharge Review Board files indicates that his request was received on 2 August 1988 and closed on 4 August 1988.  However, the file does not indicate the disposition.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 1988, the year the Army Discharge Review Board closed in application to that Board.  The time for the applicant to file a request for correction of any error or injustice expired in 1991.

The application to this Board was dated in March 2001, although the new application to the Army Discharge Review Board was dated in March 2002.  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__  __SK ___  __JPI ___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071347	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020718	
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.	187.00	
2.		
3.		
4.		
5.		
6.