MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           31 JANUARY 2002
	DOCKET NUMBER:   AR2001063473

	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:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Elzey M. Arledge, Jr.		Member	
	Ms. Regan K. Smith		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 discharge under other than honorable conditions be upgraded to general or honorable.  

The applicant states that he was never court-martialed, that he was never AWOL, and that he had no bad time.  Consequently, his discharge should be upgraded so that he can move on in his life. 

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 entered on active duty on 18 July 1975 and was discharged in the pay grade of E-4 on 22 May 1978.  He reenlisted for 3 years on 23 May 1978.

On 9 November 1978 the applicant received nonjudicial punishment under   Article 15, UCMJ, for stealing a noon meal.  On 1 November 1979 he received nonjudicial punishment for failing to go to his place of duty.  On 10 April 1980 he received nonjudicial punishment for again failing to go to his place of duty.  On   12 June 1980 he received nonjudicial punishment for disrespect to an NCO.  On 9 October 1980 he received nonjudicial punishment for failing to go to his place of duty on four separate occasions. 

A 6 March 1981 letter from the commander of the 82nd Airborne Division at Fort Bragg, North Carolina, to the applicant’s battalion commander, shows that the applicant had an approved request for discharge and that he would be furnished an Under Other Than Honorable Conditions Discharge Certificate.

The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with civil or military authorities, on 18 March 1981.  

On 28 January 1983, the Army Discharge Review Board in an unanimous opinion, denied the applicant’s request to upgrade his discharge.  The board noted his record of nonjudicial punishments.  It indicated that he underwent a mental status evaluation on 13 August 1980 and had no significant mental illness, and that he underwent a separation physical on the same date.  The board showed that the applicant’s unit commander notified the applicant of his intention to recommend him for discharge, that the unit commander recommended to the discharge authority that the applicant be discharged for misconduct, that the applicant having been advised by counsel, requested a personal appearance before a board of officers, and that request was approved.  It showed that the board met and found the applicant undesirable for further retention because of frequent incidents with military authorities and because of habitual shirking.  That board recommended discharge with an Under Other Than Honorable Conditions Discharge Certificate.  It showed that the separation authority approved the recommendation on 4 March 1981, that the applicant had a mental status evaluation on 17 March 1981 and was found mentally responsible.  He was discharged on 18 March 1981.  The Army Discharge Review Board noted in its review of the applicant’s request that the applicant was found mentally and physically qualified for separation, and that, although he did testify that he had some personal problems, those problems were not of the extent and magnitude which caused him to serve unsatisfactorily.  The Board noted that the applicant had been counseled on 17 occasions, but did not favorably respond to the counseling sessions or punishments under Article 15.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An Under Other Than Honorable Conditions Discharge Certificate is normally appropriate for a member discharged for misconduct.

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 8), 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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge under other than honorable conditions 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 28 January 1983, the date the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 28 January 1986.

The application is dated 21 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 3 year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __EJA___  __RKS __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063473	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020131	
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.