MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            05 AUGUST 2003                  
	DOCKET NUMBER:   AR2003085219

	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. Luther L. Santiful		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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 other than honorable conditions be changed to honorable or general.

The applicant states that he was experiencing severe family problems in 1975.  He was counseled in regard to a hardship discharge; however, because of his immaturity, he felt that he could not wait the 6-8 months processing time that the discharge would entail.  Although the charges against him of AWOL were serious, the Army acknowledged the extenuating circumstances as indicated by the counseling regarding a hardship discharge.  Despite losing 309 days, the time he did serve was honorable.  

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 enlisted in the Army for three years on 26 April 1974, completed basic training, and in June 1974 was assigned to Fort Huachuca, Arizona, for advanced training.  

He was AWOL from 22 August 1974 to 18 November 1974.  On 10 December 1974 the applicant was arraigned, tried, and pled guilty to AWOL before a special court-martial which convened at Fort Ord, California.  He was sentenced to be confined at hard labor for 75 days.  The convening authority approved the sentence.  He was confined at the Personnel Control Facility at Fort Ord.

He was AWOL again from 28 March 1975 to 26 July 1975.

A 6 August 1975 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1.  The applicant stated that he was in good health. 

A 19 August 1975 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  He met the medical standards for retention in the Army.  

On 19 August 1975 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he was guilty of the charge against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military duty.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.    

In a separate statement, he stated that he had received nonjudicial punishment under Article 15, UCMJ, on two occasions, and had one conviction by a court-martial.  He stated that he could not stand the Army – that he hated it.  He came in the Army because of personal problems at home.  If he returned to duty he would go AWOL again.  He could not take care of problems at home and stay in the Army.  He stated that he understood that nature and consequences of the undesirable discharge that he might receive, and would accept it.   
 
The applicant's commanding officer recommended approval of his request, and recommended that he receive an Undesirable Discharge Certificate.  He stated that the applicant went AWOL because he was not getting along and did not like the training.  He went home to help his family with their problems.  He was counseled regarding a hardship discharge and a compassionate reassignment, but the applicant stated that he did not have sufficient grounds to apply for either one.    

On 20 September 1975 the separation authority approved the applicant's request and directed that he be issued an Undesirable Discharge Certificate.  That officer indicated that the applicant had been counseled regarding a hardship discharge or compassionate reassignment; however, the applicant was adamant in his desire for a discharge for the good of the service.  The applicant was discharged on 2 October 1975.

On 25 January 1979, the Army Discharge Review Board, in an unanimous opinion, denied the applicant's request to upgrade his discharge.

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 discharge was in error or unjust and as such there is no basis to correct his record to upgrade his discharge as he has requested.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 January 1979, 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          25 January 1982.

The application is dated 8 January 2003 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

__LLS __  __CLG   _  __RJW __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003085219	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030805	
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.