MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            04 JUNE 2002
	DOCKET NUMBER:   AR2002071598

	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. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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:  To have his "military record revised or straighten out if possible to reverse what ever is negative on [his] record."  In effect, the applicant is requesting that his undesirable discharge be upgraded.  He makes no additional 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 enlisted and entered active duty on 28 July 1971.  He was 18 years old at the time of his enlistment and had 11 years of formal education.  The applicant successfully completed basic and advanced individual training.  However, while undergoing advanced individual training he was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for missing a unit formation.  In spite of his UCMJ action the applicant was promoted to pay grade E-2 and received excellent conduct and efficiency rating during training.

In December 1971, following completion of training, the applicant was assigned to Fort Knox, Kentucky as a cook.  Shortly after his arrival, he was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty.  In May 1972 the applicant was punished again under Article 15 of the UCMJ for failing to go to his appointed place of duty on four different occasions.  His punishment included reduction to pay grade E-1.

On 19 June 1972 the applicant departed AWOL (absent without leave).  He was dropped from the rolls of the Army on 18 July 1972.  On 27 July 1972 he was apprehended by civilian authorities in Catonville, Maryland and returned to military control.  

On 14 August 1972, shortly after charges were preferred for the applicant's original period of AWOL, he departed AWOL again.  He was apprehended by military authorities in Baltimore, Maryland and returned to military control on 
28 November 1972.

When charges were again preferred, which also incorporated the original AWOL period, 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 undesirable 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. He did not submit any statements on his own behalf.

A 4 December 1972 separation physical examination found him medically qualified for separation.

The applicant's request for separation was approved and on 15 January 1973 he was discharged "under conditions other than honorable" 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.  An undesirable discharge was normally considered appropriate.  

There is no evidence, and the applicant has not presented any, which would serve as a basis to upgrade his discharge or expunge any adverse information contained in his military record.

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 on 15 January 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 15 January 1976.

The application is dated 13 December 2001 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

__JLP___  __AAO __  __RKS __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020604	
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.