MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           2 October 2003                 
	DOCKET NUMBER:   AR2003085740

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to honorable.  He believes that his overall military record warrants an honorable discharge.

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 on 31 January 1968, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4.  He served in Europe and was honorably released from active duty on 21 January 1971.

He was assigned to an Army Reserve unit on 23 June 1972.

He reenlisted in the Regular Army on 15 January 1975 and served continuously through reenlistments, being promoted to pay grade E-6.

On 28 June 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty.

On 13 March 1985, the applicant was reduced from pay grade E-6 to pay grade E-5 (the reason for the reduction is not a matter of record).

On 24 July 1985, the applicant’s duty status was changed from present for duty to absent without leave (AWOL).

On 24 August 1985, court-martial charges were preferred against the applicant for:

	- being AWOL from 24 July 1985 to a date to be determined (he had not yet returned to military control); 

	- on 14 January 1985, making a check in the amount of $500.00 for which he did not have sufficient funds to cover;

	- on 1 February 1985, making a check in the amount of $450.00 for which he did not have sufficient funds to cover;

	- on 25 February 1985, making a check in the amount of $500.00 for which he did not have sufficient funds to cover;

	- on 27 February 1985, making a check in the amount of $500.00 for which he did not have sufficient funds to cover;

	- on 10 March 1985, making a check in the amount of $500.00 for which he did not have sufficient funds to cover;

	- on 19 March 1985, making a check in the amount of $500.00 for which he did not have sufficient funds to cover;

	- on 20 March 1985, making a check in the amount of $400.00 for which he did not have sufficient funds to cover;

	- seven specifications of stealing by uttering worthless checks; and

	- with intent to deceive, make a false official statement to the German police that his checkbook had been stolen.

On 6 October 1985, the applicant was placed in confinement by civil authorities and charged with two counts of armed robbery and four counts of robbery out of state.

On 7 January 1986, the applicant pled and was found guilty by United States District Court of: 

	- by force and violence, and by intimidation, unlawfully, willfully, and knowingly take from the person and presence of another something of value;

	- unlawfully, willfully, and knowingly using a firearm during and in relation to a crime of violence; and

	- by force and violence, and by intimidation, unlawfully, willfully, and knowingly take from the person and presence of another something of value.

The applicant was sentenced to a total of 35 years confinement for his offenses.

Thereafter, the applicant was notified by his commander of his intent to recommend his discharge due to civil conviction, and of his rights in conjunction with that recommendation.  The applicant elected to have a board of officers consider his case.

Accordingly, on 25 July 1986, a board of officers was convened.  The board of officers found that the applicant was undesirable for further retention in the military because of civil conviction.  The board of officers recommended that the applicant be furnished an UOTHC Discharge Certificate.

The board of officers findings and recommendation was approved by the appropriate authority and the applicant was discharged on 20 August 1986.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

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 August 1986, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 20 August 1989.

The application is dated 20 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___kan__  ____ le__  ___jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003085740	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200310	
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.		
2.		
3.		
4.		
5.		
6.