MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 DECEMBER 2001
	DOCKET NUMBER:   AR2001063137

	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. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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 general discharge be upgraded to honorable. He states he was not aware that he could have his discharge upgraded and that no one "talked to [him] about not leaving the Army" in 1978.  He states that he was "young and stupid" and that he has "changed since then."  He also notes that the absence of a Reenlistment Eligibility (RE) Code in item 10 of his DD Form 214 (Report of Separation from Active Duty) is preventing him from enlisting in the Army Reserve.  He submits no evidence in support of his request.

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 3 May 1976, at the age of 17, with 10 years of formal education and a GT (general technical) score of 97.  He successfully completed basic and advanced individual training and was assigned to Panama as an infantryman in October 1976.

By September 1977 he had attained the grade of E-3 and in December 1977 he achieved a Skill Qualification Test (SQT) score of 73 percent.  That score indicated that he was qualified as an infantryman at his current skill level (60 percent required), but not for the next higher skill level (80 percent required).

In March 1978 the applicant's unit commander initiated action to administratively separate the applicant from active duty under the provisions of Chapter 5, Army Regulation 635-200.  His commander cited two records of non-judicial punishment, two letters of reprimand, the applicant's poor attitude, lack of motivation, inability to adapt socially, hostility toward the Army, lack of self-discipline, and failure to demonstrate promotion potential as the basis for his recommendation.

The applicant acknowledged receipt of the proposed separation, consulted with counsel, and elected not to make any statements, or submit a rebuttal in his behalf.

The recommendation was approved and on 7 April 1978 the applicant was discharged under honorable conditions.  

The copy of his DD Form 214, contained in his military personnel file does reflect a RE Code of 3.  At the time the individual was separated from active duty, item 10 (RE-Code), and item 9c (authority and reason), were omitted from some copies issued to the individual.  The individual could then give those copies to employers or organization that might require copies of the separation report, but did not have a need to know the basis for the individual's separation.  A copy of the applicant's DD Form 214, which contains that information, will be provided to the applicant as part of this Board's action.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

The applicant’s separation was executed in accordance with applicable laws and regulations and his general discharge was consistent with his overall military service.  He has submitted no evidence which would serve as a basis to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 April 1978, the date applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 7 April 1981.

The application is dated 22 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 __  __TL____  __JAM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063137	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011218	
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.