MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 MAY 2003                  
	DOCKET NUMBER:   AR2003083913

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Roger W. Able		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 the last name in his military records be corrected to reflect “Marble” vice “Mable” and that his rank of E-4 be restored.  He also notes that the Army owes him 10 months of pay.  The applicant states that he enlisted for a period of 3 years but was asked to leave the Army because he “saw something regarding” the assassination of Doctor Martin Luther King.  Other than his self-authored statement, 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 enlisted for a period of 3 years and entered active duty on 6 July 1960.  All of his enlistment documents, including documents signed by his parents, indicate the applicant’s last name was “Mable.”  The applicant authenticated numerous documents, throughout his military file, as “Mable.”  He has submitted no evidence that his last name was recorded incorrectly in military file.

The applicant successfully completed training and in December 1960 was assigned to an artillery unit in Korea.  By November 1961 he had been promoted to pay grade E-4.  However, between December 1961 and August 1962 he was convicted by three special courts-martial and punished once under Article 15 of the Uniform Code of Military Justice.  His offenses were all associated with periods of AWOL (absent without leave) and failing to report to his assigned duty location.  As a result of his second court-martial he was reduced to pay grade 
E-3 in February 1962, and as a result of his third court-martial, he was reduced to pay grade E-1 in April 1962.

In May 1962 the applicant returned to the United States and was assigned to Fort Sill, Oklahoma.  In August 1962 his unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-209 for unsuitability.  His unit commander cited the applicant’s chronic disciplinary problems, repeated misconduct, and habitual AWOL, as the basis for his recommendation.  The applicant acknowledged receipt of the proposed separation; consulted with counsel, and waived his attendant rights.  

The unit commander’s recommendation was approved and on 7 September 1962 the applicant was discharged under honorable conditions.

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.

The applicant has provided no evidence that he was erroneously discharged or that he is entitled to have his rank restored.  In the absences of such evidence, there is no basis to grant the applicant’s request.  

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 September 1962, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 7 September 1965.

The application is dated 6 December 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 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__AAO__  ___TAP__  __RWA__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003083913	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030515YYYYMMDD	
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.