MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 JUNE 2003                  
	DOCKET NUMBER:   AR2003086602

	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. Fred N. Eichorn		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Marla J. Troup		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 makes no statement and 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:

He enlisted and entered active duty on 8 January 1976 at that age of 21 with 11 years of formal education.  

In May 1976, while undergoing training at Fort Jackson, South Carolina, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of marijuana.  

In spite of the UCMJ action, the applicant successfully completed training and in May 1976 he was assigned to Europe as a food service specialist.

By January 1977 he had been promoted to pay grade E-3.

In February 1977 he was punished under Article 15 of the Uniform Code of Military Justice for stealing a television from another soldier.  His punishment included reduction to pay grade E-2.  However, by July 1977 he had again been promoted to pay grade E-3 and in November 1977 he was promoted to pay grade E-4.

In January 1978 the applicant received a performance evaluation report for the period January 1977 through November 1977 indicating that he was successfully performing his duties as a cook and received ratings of "ranks with the very best" and "superior to most" in all 10 rating areas.  His overall performance score was 119 out of a possible 125 points.

Although documents associated with the applicant's administrative separation were not available to the Board, his separation document indicates that the applicant was discharged on 27 September 1978 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued an undesirable discharge certificate.  He was separated in pay grade E-1.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

The discharge is voluntary in nature and initiated by the individual soldier once court-martial charges have been preferred. In requesting such a discharge the soldier consults with counsel and in his request he acknowledges that he understands the nature and consequences of the undesirable discharge which he might receive.  He also acknowledges that he understands that he can be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

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.

In the absence of evidence to the contrary, the Board presumes that the applicant's discharge was accomplished in compliance with applicable laws and regulation.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 September 1978, the date applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 27 September 1981.

The application is dated 30 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

__FNE__  __HOF __  __MJT___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003086602	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030617	
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.