MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2002                  
	DOCKET NUMBER:   AR2001064261

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 opinions, if any).

APPLICANT REQUESTS:  In effect, that the under other than honorable conditions characterization of his service be upgraded.

The applicant does not give a date of discovery or identify what alleged error or injustice he wishes the Board to address.  He states only that his discharge is unjust as a reason as to why it would be in the interest of justice for the Board to consider this application.

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 active duty on 26 October 1976.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 64C (Truck Driver). 

The applicant received nonjudicial punishment (NJP) on eight occasions as follows: 

a.  16 May 1977, for wrongful possession of marihuana; 

b.  20 May 1977, for sleeping at his post while on sentry duty; 

c.  8 November 1977, for disrespectful language to a noncommissioned officer (NCO), communicating a threat toward an NCO by threatening to shoot him, and willful disobedience of a direct order from a commissioned officer to not load his shotgun on guard duty; 

d.  15 December 1977, for failure to go to his appointed place of duty; 

e.  11 January 1978, for being absent from his appointed place of duty and breaking restriction; 

f.  19 October 1978, for stealing a cassette player from a fellow soldier; 

g.  17 January 1979, for willful disobedience of a direct order from an NCO and for operating a motor vehicle in a reckless manner endangering others; and,

h.  14 June 1979, for disorderly conduct in quarters.

In addition to the above listed NJPs, his record also shows that he had been counseled on at least 6 additional occasions for violations of Army regulations and misconduct.  Also, in March of 1978, a U.S. Magistrate convicted the applicant of shoplifting which also resulted in the revocation of his base exchange privileges.  

The applicant's company commander initiated discharge proceedings on 30 March 1978, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, frequent incidents of a discreditable nature with civil and military authorities.  This recommendation was disapproved and the applicant was afforded a rehabilitative transfer.

On 18 July 1979, the applicant's new company commander initiated discharge proceedings under the same provisions as above following the imposition of a third NJP under his command.

The applicant was advised of his rights and after consulting with military counsel he waived his right to a board of officers to submit a statement on his own behalf and to representation by counsel.

The applicant was afforded mental status evaluation (MSE) and a physical examination.  The MSE found the applicant's behavior normal.  He was found to be able to tell right from wrong and to adhere to the right.  The physical examination found that he met the medical retention standards of Army Regulation 40-501 and was qualified for separation. 

The discharge authority approved the discharge recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33B with a characterization of service as having been served under other than honorable conditions.  

The applicant was discharged on 23 August 1979 having served 2 years, 9 months and 28 days on active duty.  

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, conviction by civil authorities, desertion or absence without leave.  An under other than honorable conditions discharge is determined to be appropriate.

There is no indication that the applicant applied to the Army Discharge Review Board 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.  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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 August 1979, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 August 1982.

The application is dated 4 October 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:

__RVO__  __RWA__  __JTM __  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064261	
SUFFIX		
RECON		
DATE BOARDED	20020620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.