MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            09 OCTOBER 2003                  
	DOCKET NUMBER:   AR2003087433

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Robert J. Osborn II		Member	
	Ms. Eloise C. Prendergast		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:  In effect, that his discharge be upgraded to honorable or general.

COUNSEL CONTENDS:  That the applicant's commander did not make allowances for counseling, rehabilitation, or retraining, thus reducing the applicant's ability to rise to a level of responsibility.  No action was taken concerning his right eye impairment (20/400 vision).  His platoon sergeant hindered the applicant from receiving follow-on medical attention, going against orders of medical personnel that the applicant should be placed on light duty.  The applicant was directed to drive a military vehicle on several occasions in a desert region despite problems with his eye. 

It has taken several years to support the applicant's efforts to complete his application, because of lost or destroyed records.  After he went AWOL, the applicant resided with a friend near Fort Irwin, California.  Attempts for employment were unsuccessful because of his limited vision.  The deterioration of his mental health and his use of alcohol caused him to be frustrated.  With the support of his family he underwent mental health treatment.  He currently functions somewhat impaired because of alcohol/drug abuse.      

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 four years on 28 December 1977, and was assigned to Fort Knox, Kentucky for training.  On 13 March 1978 he received nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military Justice) for failure to go to his place of duty.

The applicant completed training, and in April 1978 was assigned to a cavalry squadron at Fort Ord, California.  On 29 August 1978 he received nonjudicial punishment for wrongful possession of marijuana.

In May 1979 he was assigned to a cavalry squadron in Germany.  On 27 March 1981 the applicant received nonjudicial punishment for leaving his place of duty, and for being incapacitated because of alcohol indulgence in the proper performance of his duty.  

He returned to the United States and was assigned to an armored battalion at Fort Irwin in June 1981.  On 4 August 1981 the applicant received nonjudicial punishment for disrespect to a noncommissioned officer and for leaving his place of duty. 

On 2 November 1981 charges were prepared against the applicant for wrongful possession of marijuana, failure to go to his place of duty on three occasions, and dereliction of duty.

On 23 November 1981 the applicant went AWOL.  He was returned to military control on 3 May 1982.  Charges were preferred against the applicant for his period of AWOL.  On 10 June 1982 he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he acknowledged 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 service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He declined to submit a statement in his own behalf.  

On 16 July 1982 the separation authority approved the applicant's request and directed that he receive a discharge under other than honorable conditions.  The applicant was discharged on 9 August 1982.

On 19 June 1984, in an unanimous opinion, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

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.

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 or counsel provided any, to indicate that his discharge under other than honorable conditions enlistment grade was in error or unjust and as such there is no basis to correct his record by upgrading his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 June 1984, 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         19 June 1987.

The application is dated 18 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

__RVO__  __RJO __  __ECP __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003087433	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031009	
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.