MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            05 AUGUST 2003                  
	DOCKET NUMBER:   AR2003086426

	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. 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 under other than honorable conditions discharge be upgraded.  He states that he requested leave to marry his pregnant girlfriend, but was denied leave by his commanders.  He states that he wanted to do the right thing so departed AWOL (absent without leave) in order to go home and get married.  He states that when he was asked during his court-martial if he wanted to stay in the Army or get out he responded that he would rather stay in.  However, when they reassigned him to a retraining brigade he decided he wanted to get out of the Army.  He states that he was young and scared and went AWOL because he didn't know any better.  The applicant 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:

The applicant enlisted and entered active duty on 29 July 1980, at the age of 20, with 12 years of formal education.  His enlistment contract notes that he had several driving violations, including driving while intoxicated prior to his enlistment.  Included, as part of his enlistment contract, was a $3000.00 enlistment bonus.

The applicant successfully completed basic and advanced individual training and was assigned to Fort Ord, California as a rifleman in November 1980.  He was promoted to pay grade E-2 in January 1981.

In early February 1981 the applicant was punished under Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty.

On 22 February 1981 the applicant departed AWOL.  He married his 17 year old girl friend on 10 March 1981 and on 23 March 1981 returned to military control.  His daughter was born in April 1981.

In May 1981 he was punished again under Article 15 of the Uniform Code of Military Justice for failing to be at his place of duty.

In June 1981 he was convicted by a special court-martial of the earlier AWOL and a charge of missing movement.  His sentence included 4 months confinement at hard labor.  The applicant's confinement commenced on 11 June 1981 and on 25 June 1981 he was transferred to the United States Army Retraining Brigade at Fort Riley, Kansas.

On 16 July 1981 he was released from confinement and assigned as a trainee at the Retraining Brigade.  

On 21 July 1981 he was punished a third time under Article 15 of the Uniform Code of Military Justice, this time for failing to obey a lawful order.

A 23 July 1981 "social work evaluation" noted that the applicant had indicated that he did not care what kind of discharge he received, he just wanted to get out of the Army and admitted to deliberate acts of misconduct in order to achieve that goal.

Between 6 July and 30 July 1981 the applicant was counseled on 22 different occasions for a variety of infractions associated with his conduct as a trainee.

On 3 August 1981 the applicant's commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 14 for frequent incidents of misconduct.  The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights.  In his acknowledgement document, the applicant acknowledged that he understood the ramifications of the under other than honorable conditions discharge which he could receive as a result of the separation action.

The commander's recommendation was approved and on 18 August 1981 the applicant was discharged under other than honorable conditions.  At the time of his separation he was 21 years old, and had approximately 10 months of creditable service with more than 60 days of lost time.

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, and convictions by civil authorities, desertion or absence without leave.  Generally a discharge under other than honorable conditions is appropriate for a soldier discharged under this chapter.  

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.
The applicant's separation action was based on frequent incidents of misconduct and not merely on his one instance of AWOL.  In the absence of evidence to the contrary the Board concludes the applicant’s separation was appropriate and he has submitted no evidence which would serve as a basis to upgrade his discharge as a matter of equity.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 August 1981, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 August 1984.

The application is dated 12 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 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	AR2003086426	
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.