MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 SEPTEMBER 2002                  
	DOCKET NUMBER:   AR2002072348

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Donald P. Hupman, Jr.		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 discharge under honorable conditions be upgraded to honorable.    

He states that his service records do not show his basic training time.

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 on active duty on 1 May 1984, completed basic combat training and motor transport operator training at Fort Dix, New Jersey, and in September 1984 was assigned to an armored battalion in Germany as a vehicle driver.

The applicant was counseled on five occasions beginning in November 1984, twice for not passing a driver’s test and three times for not being able to get along with his fellow soldiers.  

On 15 July 1985 the applicant received nonjudicial punishment under Article 15, UCMJ, for being drunk and disorderly. 

On 29 July 1985 the applicant’s commanding officer recommended that the applicant be barred from reenlistment.  He stated that the applicant had been AWOL from his place of duty, and that he received an Article 15 for being drunk and disorderly.  He stated that the applicant had underwent a psychological test and was found to have problems that relate to his potential in the military.  He stated that the applicant had no potential for promotion and that he was unable to respond to military life in a normal manner.  On 2 August 1985 the recommendation was approved.

On 7 August 1985 the applicant’s commanding officer notified the applicant that he was recommending that the applicant be separated from the Army for unsatisfactory performance of duty under the provisions of Army Regulation   635-200, paragraph 13-2.  

The applicant consulted with counsel, and stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He submitted a statement from a fellow soldier concerning the incident in which he [the applicant] was arrested by the military police for being drunk and disorderly.  He stated that he understood the nature and consequences of the general discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged.  On 12 August 1985 the separation authority approved the recommendation. 

The applicant was discharged on 20 August 1985.  He had 1 year, 3 months, and 20 days of service.

On 11 March 1987, the Army Discharge Review Board in an unanimous decision, denied the applicant’s request to upgrade his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

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.

There is no evidence, nor has the applicant provided any, to indicate that his general discharge was in error or unjust and as such there is no basis correct his record to upgrade his discharge.  Notwithstanding the applicant’s statement, his records do show that he completed basic training and the period of that training.  That information, however, is not required to be entered on an applicant’s separation document, for instance, his DD Form 214.
DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 March 1987, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on         11 March 1990.      

The application is dated 14 April 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

__AAO__  __KWL__  __DPH __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002072348	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020924	
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.