MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           17 JANUARY 2002
	DOCKET NUMBER:   AR2001062706

	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. Christopher J. Prosser		Member	
	Mr. Kenneth W. Lapin		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:  In effect, disability retirement or separation.  He states that he was suffering from ADDHD (Attention Deficit Disorder and Hyperactivity Disorder) at the time he entered active duty.  He notes that the Army failed to recognize this and his “mind couldn’t handle the psychological battering” and that the “other humiliation made [him] crazy.”  

He states he was not in control of his actions and that the Army was the cause.  He states he should have received a medical discharge with all benefits and maintains that his drill instructor “shattered [his] stability out of control.”  Although he noted in his application that he was submitting a statement from his attending physician, no such statement was received with the application.  He states he is just now remembering “how & why” he is the way he is today and that he is “on S.S.I.” for mental disorders.

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 19 April 1984 at the age of 19 with 12 years of formal education.  

He commenced basic training at Fort Leonard Wood, Missouri on 25 April 1984 and on 31 May 1984 departed AWOL (absent without leave).  His records contain a statement, rendered in 1986, that he departed AWOL because his girlfriend was having a lot of difficulties and he was extremely worried about her safety.

The applicant was dropped from the rolls of the Army on 30 June 1984.  

He was apprehended on 3 September 1984 and given a provisional pass to return to the Personnel Control Facility at Fort Knox, Kentucky.  He failed to report to Fort Knox and on 7 September 1984 was again reported as AWOL.  He was subsequently dropped from the rolls of the Army on 7 October 1984.

In 1985 the applicant was convicted by a civilian court of forgery and ultimately sentenced to 4 years imprisonment following violation of the terms of his probation.

In the summer of 1986 action was initiated to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 14 as a result of his civil conviction.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  

He did submit a statement in his own behalf.  It was in that August 1986 statement that he explained his reason for being AWOL in 1984.  He also noted in that statement that he really enjoyed the Army and would like that taken into consideration as part of his discharge action.

The recommendation was approved and on 3 November 1986 the applicant was discharged under other than honorable conditions.  

At the time of his separation he had only 1 month and 7 days of creditable active service and there is no indication he ever returned to military control following his 7 September 1984 AWOL status.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

There is no evidence, nor has the applicant provided any, that he had any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 November 1986, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 3 November 1989.

The application is dated 20 August 2001 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 _ _  __CJP _    __KWL__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062706	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020117	
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.	142.00	
2.		
3.		
4.		
5.		
6.