RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 March 2004                  
	DOCKET NUMBER:   AR2003091230

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert J. Osborn		Member	

	The applicant and counsel, if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge be upgraded.

2.  The applicant states that he had previously applied for an upgrade but was denied, and did not consider reapplying until recently.  He contends that his discharge is unjust because he alleges that he was the, "only minority in room", that he was not properly represented, that he was not given enough time to prepare, or that he was informed that he would have to appear before a board of officers. 

3.  The applicant provides no supporting evidence or documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the Board grant the applicant an upgrade of his discharge.

2.  Counsel states that the Board should carefully review the applicant’s record and to favorably consider upgrading his discharge.  Counsel states that, although the applicant’s infractions constitute military misconduct, he is not a criminal and that any doubt should be resolved in favor of the applicant.

3.  Counsel provides no supporting documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 March 1978.  The application submitted in this case is dated 24 April 2003. 

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty on 18 October 1971, completed training and was awarded the military occupational specialty (MOS) of 91B (medical aidman) and assigned to Germany.

4.  While in Germany the applicant became addicted to heroin.  He was hospitalized first for hepatitis and later for drug abuse treatment with transfer to the United States for participation in the drug abuse rehabilitation program.
5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows: 

•	On 12 April 1972 for dereliction of duty.

•	On 10 September 1972 for AWOL from 1 September 1972 to 5 September 1972.

•	On 14 May 1973 for being absent without leave (AWOL) 6 May 1973 to 8 May 1973.

•	On 14 June 1973 for failure to go to his appointed place of duty.

•	On 9 July 1973 for failure to go to his appointed place of duty.

•	On 16 October 1973 for AWOL from 9 October 1973 to 16 October 1973.

6.  The applicant’s file also contains five general counseling statements documenting poor military appearance and/or reporting late for duty.

7.  On 25 August 1973 the applicant was relieved from duty on the Nursing Service at the Army Hospital, Fort Knox, Kentucky.

8.  A mental status examination conducted on 17 September 1973 found the applicant's behavior normal.  He was alert and oriented.  His mood was depressed; his thinking confused and thought content normal.  The applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right.  He met the medical retention standards of Army Regulation 40-501 and was qualified to participate in any administrative actions.

9.  The applicant was notified that his commander had recommended that he be discharged.  After consulting with military counsel on 20 September 1973, he requested to appear before a board of officers to determine if he should be retained on active duty.  

10.  The applicant appeared, with counsel, before the board of officers on 29 November 1973.  That board recommended that he be eliminated from the service for unfitness under Army Regulation 635-200, paragraph 13-4. 

11.  The discharge authority approved the recommendation and directed that the applicant receive an undesirable discharge (UD).

12.  The applicant was discharged on 28 December 1973 with an Undesirable Discharge.  He had 2 years, 1 month, and 28 days of creditable service with 13 days of lost time due to AWOL.

13.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-4 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, and shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  In 1977 the applicant applied for a discharge upgrade under the Special Discharge Review Program (SDRP).  On 3 May 1977 he was advised that his discharge did not fall within the period of review for the SDRP but that he could apply for a normal discharge review with the submission of a new application to the Army Discharge Review Board.  The applicant failed to avail himself of this opportunity.

15.  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 2-4), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to provide any documentation that he was not properly represented or afforded sufficient time to prepare for his board of officers hearing.  There was almost two months between his initial consultation with counsel and the board of officers hearing.

2.  His contention that his discharge was based on racial prejudice is unsubstantiated.  Considering the duration and extent of his misconduct his assertion that he was the, "only minority in room" is unintelligible.

3.  There is insufficient evidence to show that the applicant’s discharge was or is unjust.  The applicant received NJP on six occasions in a year and a half, and had numerous negative general counseling statements written documenting his poor military appearance and that he frequently reported late for duty.

4.  The record shows the applicant should have discovered the alleged error or injustice now under consideration on 3 May 1977; the date he was notified that he did not met the criteria for the SDRP and that he should apply for review under the normal ADRB review system.  The ABCMR 3-year statue of limitations for filing commenced on the date of denial by the SDRP.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 May 1980.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS___  __RJO __  __RWA _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of the case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is insufficient evidence to show that it would be in the interest of justice to excuse the applicant’s failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003091230 	
SUFFIX		
RECON		
DATE BOARDED	20040318	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	145  discharge Upgrade 	
2.		
3.		
4.		
5.		
6.