MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 JUNE 2003                 
	DOCKET NUMBER:   AR2003087939

	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 bad conduct discharge be upgraded.  He states, in effect, that he "became drug and alcohol dependent [his] first year in the Army" and that because of the Army he is now a "substance abuser" and is in need of medical care.  He states that he would like to file for "disability benefits."  He notes that he was hospitalized at the time of his incarceration at Fort Hood, Texas and at Fort Leavenworth, Kansas and was placed on some kind of medication during his stay there.  He maintains there was a problem with chemical dependency that was not addressed by medical officials at either location.  He 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 entered active duty on 5 July 1977 at the age of 19.  He was a high school graduate.  The applicant successfully completed training and was assigned to Fort Hood, Texas in October 1977 as a bridge crewman.  He was promoted to pay grade E-2 in January 1978.

In December 1978 the applicant was punished under Article 15 of the Uniform Code of Military Justice for absenting himself without authority with the intent to avoid field exercises, wrongfully appropriating government vehicles, and conspiring with other members of his unit to commit these offenses.  

Between 18 and 25 February 1979, the applicant was confined by civilian authorities.  His record does not indicate the basis for the confinement.

On 2 March 1979 the applicant was reported as being absent without leave (AWOL).  He returned to military control on 6 March 1979 and was punished under Article 15 of the Uniform Code of Military Justice.

On 8 March 1979 the applicant's unit commander initiated action to administratively separate the applicant from active duty under the expeditious discharge program.  The commander cited the applicant's poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially and emotionally, and failure to demonstrate promotion potential, as the basis for his recommendation.

As part of the separation action, the applicant underwent a separation physical examination which found the applicant medically qualified for separation with a physical profile of 1-1-1-1-1-1 and a physical category of A.

However, on 14 March 1979, prior to the finalization of his administrative separation action, the applicant assaulted an officer and two noncommissioned officers, hit two other soldiers, and disobeyed an officer.  As a result of the altercation, the applicant was transported to the emergency room at Fort Hood at the request of the military police.  The military police stated to emergency room personnel that the applicant was "incoherent and possibly on drugs."  A social worker was called.  There is no indication in available records that the applicant was hospitalized as a result of the incident.  On 15 March 1979 the applicant was placed in confinement.

Medical personnel saw the applicant on 16 March 1979 when the applicant stated that he had been on drugs and felt he was "having hard time."  The evaluating physician concluded the applicant had suffered from a "drug induced psychosis" and recommended referral to mental hygiene.

As a result of the 14 March altercation, charges were preferred against the applicant.  On 25 March 1979 the applicant voluntarily requested discharge in lieu of being tried by a court-martial.  The applicant's battalion commander recommended that the applicant's request be denied, noting that the court-martial charges were "too severe and warrants trial by special court-martial with the authority to adjudge a bad conduct discharge."  The applicant's request was ultimately denied.

In May 1979 the applicant was convicted by a special court-martial of four counts of assault and battery and one count of disobeying an order.  His sentence included confinement at hard labor for 6 month, forfeiture, and a bad conduct discharge.  The applicant was transported to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.  

In August 1979 the applicant was admitted to the hospital for observation.  The evaluating physician stated that the applicant had been admitted because of his erratic behavior, inability to follow the daily routine, pacing, and fighting.  The physician noted that the applicant had been placed on "trials of antipsychotic medicine" but it was questionable if the medication was beneficial considering the low dosage and relatively short periods he had been prescribed the medication.  The purpose of the hospitalization was to determine if the applicant was truly psychotic.

The applicant's physical examination, mental status and laboratory tests were all within normal limits.  The evaluating physician noted that the applicant "during daily visits” showed no evidence of psychotic process and that his statement that he was hearing voice was "probably fictitious."  It was ultimately determined that the applicant showed "no evidence of psychosis or organicity [sic] or neurological disorder" and that he suffered only from an immature personality.  The applicant was discharged and returned to the disciplinary barracks.

In October 1979 the applicant requested and was granted excess leave.  

In April 1980, after having served his confinement, his sentence was affirmed and on 23 May 1980 his bad conduct discharge was executed.

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.

At the time of the applicant's application to this Board, he was confined at the Minnesota Correctional Facility in Moose Lake, Minnesota.

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, and the applicant has not provided any, that would serve as a basis to upgrade his discharge.  The evidence does show that medical personnel treated him for drug use in March 1979 and that he was not suffering from any "psychosis or organicity [sic] or neurological disorder" while confined at Fort Leavenworth.  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 that requirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 May 1980, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 23 May 1983.

The application is dated 25 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

__FNE __  __HOF__  ___MJT__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003087939	
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.