MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 October 2003
	DOCKET NUMBER:   AR2003083935

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Robert J. Osborn, II		Member	
	Ms. Eloise C. Prendergast		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 Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).  He contends that he had no trouble -- nonjudicial punishments or courts-martial --  until the very end of his period of service.  He provides five character references.

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 are incomplete.  The available records show:

He enlisted in the Regular Army (RA) for 3 years on 10 July 1967 for training in Army Career group 62 - Engineer heavy Equipment Operation and Maintenance. Upon completion of all required military training, he was awarded MOS (military occupational specialty) 62F, Crane Shovel Operator, and transferred to Germany.

The applicant served in Company E, 12th Engineer Battalion, 8th Infantry Division from on/about December 1967 to March 1968.  He was honorably separated on 25 March 1968 for the purpose of immediately reenlisting for 3 years on 26 March 1968 and an assignment in Vietnam.

There is very little information in the applicant's records concerning his second period of RA service.  Although he clearly reenlisted for duty in Vietnam, there is no indication that he ever actually served in Vietnam.  The record shows that he was absent without leave (AWOL) from Fort Campbell, Kentucky, during the period 5 September - 17 December 1969.  On 18 December 1969, he was present for duty at Fort Campbell, but he again went AWOL on 5 January 1970 and was subsequently dropped from the rolls of the Army as a deserter.

The applicant remained absent through 16 July 1970.  He was apprehended and returned to military control at Fort McPherson, Georgia, where, on 20 July 1970, he was placed in the Post Stockade and court-martial charges were preferred against him.  Although the applicant's discharge packet is no longer a part of his record, he apparently requested an administrative discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial.

The applicant was released from confinement on 17 August 1970.  As stated, his record is void of facts and circumstances concerning the actual events that led to his discharge from the Army.  However, the record does contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he would have been required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.

On 20 October 1970, the applicant was separated with a UD.  He had 1 year and 8 months of creditable service for the period under review and 8 months and 16 days of creditable service on his initial enlistment.  He also had 325 days of lost time due to AWOL and confinement.  His DD Form 214 does not reflect any foreign service for the period under review, nor does it reflect and awards and decorations typical of service in Vietnam.

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 20 October 1970, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 October 1973.

The application is dated 5 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

__rvo___  __rjo___  __ecp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003083935	
SUFFIX		
RECON		
DATE BOARDED	20031009	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701020	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.