MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 JULY 2003                  
	DOCKET NUMBER:   AR2003085879

	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:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert L. Duecaster		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 be upgraded.  He states that he realizes that he made a mistake by being AWOL (absent without leave) but felt that he had no other choice at the time.  He states that he had been a "model soldier prior to the incident" and that after his father was seriously injured on his job he requested leave but it was denied.  He states that "during maneuvers while back in the United States [he] realized that this was [his] opportunity to go and check on [his] family.  He states that when he got home he decided to get a job to help his family.  He maintains that his family needed him and that he was undergoing psychiatric treatment at the time.  He states that he had a stroke in 1979 and is now unable to work and would like his discharge upgraded so he could utilize the Department of Veterans Affairs medical facilities. In support of his request he submits a statement from his mother supporting his request to upgrade his 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.

COUNSEL CONTENDS:  Counsel offers nothing beyond that already submitted by the applicant.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted and entered active duty on 30 October 1958.  Upon successful completion of training, he was assigned to Germany in March 1959.  By June 1960 he had been promoted to pay grade E-4.

In January 1961 he was reduced to pay grade E-3.  The basis for the reduction was not in records available to the Board.

In February 1961 the applicant returned to the United States and was assigned to Fort Hood, Texas.

Between March and August 1961 the applicant accumulated more than 140 days of AWOL during two different periods of AWOL.  As a result of his AWOL periods, he was convicted by a special court-martial.  His sentence included confinement at hard labor.  The applicant was confined from 18 August 1961 until 21 October 1961.  

On 23 October 1961 he again departed AWOL.  The applicant was apprehended by civilian authorities and returned to military control in November 1961.  He was subsequently convicted by a special court-martial and placed in confinement.

Although documents associated with his administrative separation were not in records available to the Board, the applicant's separation document indicates that he was discharged under other than honorable conditions on 2 March 1962 under the provisions of Army Regulation 635-208.  At the time of his discharge he had approximately 29 months of creditable service and more than 300 days of lost time due to AWOL and confinement.

Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses or frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

In 1967 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.  In their summation of the applicant's service they noted that he "had history [of] several art 15 [records of punishment under Article 15 of the Uniform Code of Military Justice].  It also noted that an evaluation done in January 1962, while the applicant was in confinement, indicated that the applicant had a "negativistic motivation for continued" service, rebellious attitudes toward authority and low frustration tolerance.  The evaluation indicated that there were no disqualifying mental or physical defects, which warranted discharged under disabilities procedures.

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.

The applicant's contention that he was a model soldier prior to his AWOL incident is without foundation.  Information available to the Board indicates that the applicant had repeated periods of AWOL and other disciplinary infractions which ultimately warranted his administrative separation from the Army.  He has presented no evidence which would warrant an upgrade of his discharge on the basis of equity.
DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 1967 when the Army Discharge Review Board completed their review.  The time for the applicant to file a request for correction of any error or injustice expired 1970.

The application was received in February 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

__GJW__  __KAH   _  __RLD__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003085879	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030731	
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.