MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:                

	BOARD DATE:                    1 October 2002    
	DOCKET NUMBER:            AR2002073899

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 bad conduct discharge (BCD) be upgraded to honorable.  That a colonel in Gelnhausen, Germany, told him that his discharge could be upgraded.  He adds, that his discharge was not too major a deal and this is how he was told he could get it upgraded.  He further states that he would have upgraded his discharge sooner, but he was really lost in his alcohol addiction for the last 15 years.  He also prays that he can be helped out in this matter.  He adds that if his records show that he is honorably discharged, he would like to know.

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 in the Regular Army for 3 years on 11 January 1984.  He completed training and was awarded military occupational specialty (MOS) 11B10, (Infantryman).  On 12 April 1984, he was transferred to Germany for duty.

On 15 October 1984, he was convicted by a summary court-martial of being absent without leave (AWOL) for 9 days and of wrongfully appropriating a military vehicle.  His punishment included reduction to the pay grade of E-1, forfeiture of $397.00 pay and confinement to hard labor for 28 days.

On 3 January 1985, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for assault upon a woman by grabbing her and throwing her against a wall.  His punishment included forfeiture of $50.00 pay per month for two months, 14 days of restriction and extra duty. 

On 18 January 1985, NJP was imposed against the applicant for failing to go to his appointed place of duty on 12, 13 and 14 January 1985.  His punishment included forfeiture of $300.00 pay per month for two months, 45 days of restriction and extra duty. 

The applicant was convicted by a special court-martial, of one specification of wrongfully distributing marijuana and a second specification of wrongfully possessing marijuana.  He was also convicted of a third specification of violating a lawful general regulation by possessing drug paraphernalia.  On 15 May 1985, he was sentenced to confinement with hard labor for 60 days, forfeiture of $413.00 pay per month for 6 months and a BCD.  The convening authority approved the sentence as adjudged on 6 June 1985.

On 3 July 1985, the applicant was placed on involuntary excess leave pending appellate review.

On 16 August 1985, the United States Court of Military Review affirmed the findings of guilty, and the sentence.

On 16 December 1985, Headquarters, Armor Center and Fort Knox, published SPCM Order Number 184, announcing that the sentence had been affirmed, and since the provisions of Article 71c UCMJ, had been complied with, directed that the BCD be duly executed. 

On 30 January 1986, the applicant was discharged with a BCD.  He was credited with 1 year, 10 months and 3 days active military service with 79 days of lost time due to AWOL and confinement.  He had 212 days of excess leave.  

There is no available 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 30 January 1986, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired 30 January 1989.

The application is dated 22 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 recommended 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__  ___MKP _  ___AAO_  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002073899	
SUFFIX		
RECON		
DATE BOARDED	20021001	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1986-01-30	
DISCHARGE AUTHORITY	AR 635-200 chapter 3, section IV	
DISCHARGE REASON	A144.68	
BOARD DECISION	DENY	
REVIEW AUTHORITY	A110.02	
ISSUES         1.	A123.01	
2.		
3.		
4.		
5.		
6.