MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 OCTOBER 2003                  
	DOCKET NUMBER:   AR2003087863

	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. Melvin H. Meyer		Chairperson	
	Mr. William d. Powers		Member	
	Mr. Frank C. Jones II		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 general discharge under honorable conditions be upgraded to honorable. 

He states that he may have been unable to adapt to military service; however, he volunteered for military service and did serve with honor.  Therefore, his discharge should be upgraded and he should receive full veterans' benefits.

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 three years on 18 September 1980, completed training as a petroleum supply specialist, and in February 1981 was assigned to a supply and service company in Germany.

A 30 July 1981 medical record shows that the applicant was a recalcitrant, obnoxious, argumentative, individual who had been referred for possession of marijuana.

On 5 August 1981 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful possession of marijuana.

On 20 August 1981 he received nonjudicial punishment for failure to go to his place of duty and for failure to obey a lawful order.

The applicant's military records show eight counseling statements, from July 1981 to October 1981, for continuously failing to obey orders; for having a poor attitude; substandard room appearance; insubordination; substandard personal appearance; failure to report for duty; refusal to clean up his room; continuously not getting out of bed in time; and poor performance of duty.  

The applicant's commanding officer recommended that the applicant be barred from reenlistment.  The recommendation was approved on 21 October 1981.

On 24 November 1981 the applicant's commanding officer notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), and that he receive a General Discharge Certificate.  That official cited the applicant's poor attitude toward his duties as evidenced by his repetitive failure to maintain his personal appearance and living area, his inability to adjust socially and emotionally to the Army, and lack of military bearing, and his hostility toward the Army.  He stated that the applicant was not trustworthy and was clearly a substandard performer.  He stated that the applicant constantly failed to cooperate with his peers and his supervisor.

The applicant acknowledged notification of the proposed discharge action and stated that he consented to the discharge.  He declined to submit statements in his own behalf.  He stated that he acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General Corps.  He stated that he understood the nature and the consequences of the general discharge under honorable conditions that he might receive. 

On 1 December 1981 the applicant's commanding officer recommended to the separation authority that the applicant be discharged.  On 23 December 1981 the separation authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.

A 15 December 1981 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.
In the report of medical history that the applicant furnished for the examination the applicant stated that he was in good health.

The applicant was discharged on 11 January 1982.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the  reason for his discharge as "failure to maintain acceptable standards for retention." 

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that individuals who had completed at least 6 months, but less 
than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as 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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge under honorable conditions for failure to maintain acceptable standards for retention was in error or unjust, and as such there is no basis to correct his record as he requests.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 January 1982, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 11 January 1985.

The application is dated 28 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

__MHM _  __WDP__  __FCJ __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003087863	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031021	
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.