MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 SEPTEMBER 2003                   
	DOCKET NUMBER:   AR2003089188

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann, Jr.		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 under other than honorable conditions discharge be upgraded to a general discharge.  The applicant states that his physician had instructed him not to return to active duty with the Army following his medical treatment.  He contends that he was still under medical rehabilitation when the Army wanted him "back to duty with them."  He states that when he first got out of the Army he needed to make a living for himself, but now that he is settled he wants to have his discharge corrected.  In support of his request he submits copies of medical treatment documents during his hospitalization in January 1983 as a result of severe injury to his left knee.

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 in March 1981 under the Army's Delayed Enlistment Program and entered active duty on 23 June 1981.  He successfully completed basic and advanced individual training and in December 1981 was assigned to Fort Carson, Colorado.  In June 1982 he was promoted to pay grade E-2 and in August 1982 he was promoted to pay grade E-3.

On 31 December 1982 the applicant departed AWOL (absent without leave).  On 8 January 1983, while in an AWOL status, the applicant was involved in a motor vehicle accident (he was hit by another vehicle while bending over the hood of his own vehicle).  He sustained a severe injury to the back of his left knee, which required surgery and a skin graft.  On 16 February 1983 he was released from the hospital and, according to information contained in his military personnel file, surrendered to military authorities on 12 April 1983.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could 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.  In a statement to his commander, he indicated that he departed AWOL and remained AWOL "due to his inability to follow military procedure."  The commander also noted that the applicant had been hospitalized while in an AWOL status but "did not inform his unit of his whereabouts."

The applicant's request was approved and on 29 June 1983 the applicant was separated under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10.  He had 1 year, 10 months, and 4 days of creditable service and more than 60 days of lost time.  His records indicate that the time the applicant was hospitalized was not charged as lost time.

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.  

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 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.  The applicant departed AWOL, was injured while in an AWOL status, and failed to inform his unit of his whereabouts until he returned to military control in April 1983.  His contention that his medical condition prevented him from returning to military duty, and should somehow excuse his entire period of AWOL is without foundation.  

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 June 1983, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 29 June 1986.

The application is dated 19 March 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

__JLP  __  __AAO__  __PHM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003089188	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030923	
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.