MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 OCTOBER 2003                  
	DOCKET NUMBER:   AR2003088829

	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 discharge under other than honorable conditions be upgraded to honorable. 

The applicant states that he was not properly counseled or given guidance as to the type of discharge that he was accepting.  At the time of his discharge, he tried to save a bad marriage.  It did not work.  One year later he was separated. 

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 3 February 1975, completed training, and in August 1975 was promoted to pay grade E-4.  In September 1975 he was assigned to a maintenance battalion in Germany.  

A February 1976 form indicates that the applicant was enrolled in the alcohol and drug abuse prevention control program, and that his commanding officer indicated that his efficiency was fair and his conduct and progress, unsatisfactory.

On 27 October 1977 the applicant reenlisted in the Army for six years.  

The applicant received three evaluation reports while in Germany.  Those reports shows that his rating officials considered him to be a satisfactory Soldier, an asset to the unit, who worked well with little or nor supervision, and who would be an outstanding supply man with more experience. 

The applicant returned to the United States and in March 1978 was assigned to a maintenance company at Fort Stewart, Georgia.  

A 10 June 1978 clinical record shows that the applicant was seen because of acute situational depression and suicidal gesture.  That record shows that his wife had left him one week prior to his suicidal gesture because of her dislike of the Army.  The record indicated that the applicant was working on a hardship discharge.  The applicant denied suicidal ideation at that time.  The examining physician diagnosed the applicant's condition as depression/manipulative suicidal gesture, non-suicidal at present.  

In September 1978 his check cashing privileges were suspended for six months. 

The applicant's evaluation report for the period February 1978 through October 1978 shows a decline in his performance from that of his previous ratings while in Germany.  His rater stated that he needed to improve his military appearance and bearing, and that he worked well with others but needed some supervision.  His rater stated that he would become a fine Soldier with guidance.  His endorser stated the applicant was willing to learn his duties and with time would make an outstanding Soldier.  He stated that he felt that his overall performance was hindered because of his personal problems. 

On 28 February 1979 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to is place of duty.  On         8 March 1979 he again received nonjudicial punishment for failing to go to his place of duty.

An April 1979 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 he furnished for the examination, the applicant stated that his health was excellent. 

The applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-33b(1), on 10 April 1979.
He had over 4 years of service and 22 days of lost time.  The facts and circumstances surrounding the events that led up to his discharge are not available.

On 13 September 1995, in a unanimous opinion, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.  Prior to acting on his request, that board attempted to obtain evidence concerning the circumstances of the events that led up to the applicant's discharge, contacting the applicant and the Department of Veterans Affairs (VA).  The board's attempts were of no avail.

Army Regulation 635-200, chapter 14, provides for the separation of enlisted Soldiers for misconduct.  Paragraph 14-33b(1) provides for separation for frequent incidents of discreditable nature with civil or military authorities (acts or patterns of misconduct).  An under other than honorable conditions discharge is normally appropriate for a member who is discharged for acts or patterns of misconduct.    

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

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 September 1995, 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 13 September 1998.

The application is dated 22 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	AR2003088829	
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.