MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 JANUARY 2002
	DOCKET NUMBER:   AR2001063076

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, 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:  The applicant does not indicate what he wants; however, considering that he received an undesirable discharge, in all probability he is requesting that his discharge be upgraded to either general or honorable.   

The applicant made no statement.

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 2 years on 17 February 1972, completed training, and in June 1972 was assigned to an infantry battalion in Germany.

On 20 October 1972 the applicant received nonjudicial punishment under Article 15, UCMJ, for willfully violating a general regulation.  

On 13 December 1972 the applicant’s commanding officer recommended that the applicant be barred from reenlistment.  He stated that the applicant was a substandard soldier, a suspected hashish and drug user, and a hyperactive/temperamental individual.  He also stated that the applicant was pending trial in German court for alleged armed robbery of German nationals, and that he was implicated in providing illegal drugs to female German minors.  He was also pending action for deliberately breaking a window.  The recommendation was approved by the brigade commander.

On 20 December 1972 the applicant was placed in confinement pending his trial date in a German court. 

A 1 October 1973 trial observer report submitted by the Office of the Staff Judge Advocate of the 3d Infantry Division to the Commander in Chief, United States Army, Europe and Seventh Army, shows that the applicant was convicted of two offenses of robbery-like extortion and one offense of attempted aggravated robbery on 13 July 1973 in the District Court of Wurzburg.  The applicant was sentenced to juvenile detention for 3 years.

On 9 August 1973 the applicant’s commanding officer notified the applicant that he was recommending that he be eliminated from the Army under the provisions of Army Regulation 635-206 because of his conviction for robbery-like extortion and attempted aggravated robbery by a German court.

The applicant consulted with counsel, and stated that he understood the basis for the contemplated action.  He requested consideration of his case by a board of officers.  He elected not to submit a statement in his own behalf.  He stated that he understood the nature and the consequences of the under other than honorable conditions discharge that he might receive.

The applicant’s commanding officer recommended that the applicant be eliminated from the service, and on 30 October 1973 a board of officers was appointed to consider whether or not he should be eliminated from the service.

The board convened on 1 November 1973.  The applicant was present during the board proceedings and was represented by counsel.  The board recommended that he be eliminated from the service and that he be given an Undesirable Discharge Certificate. 

On 6 March 1974 the separation authority approved the recommendation of the board and stated that the applicant would be separated upon his release from confinement and return to the United States.  He would be issued an Undesirable Discharge Certificate.

The applicant was discharged on 24 June 1974.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was 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.

There is no evidence, nor has the applicant provided any, to indicate that his undesirable discharge was in error or unjust and as such there is no basis to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 June 1974, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 June 1977.

The application is dated 16 September 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

__INW __  __HOF __  __DPH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063076	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020115	
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.	110.00	
3.	360	
4.		
5.		
6.