MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           05 FEBRUARY 2002
	DOCKET NUMBER:   AR2001064513

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. June Hajjar		Chairperson	
	Mr. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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 records be corrected by upgrading his discharge to honorable.  The applicant states that he had 150 days of lost time and received an under other than honorable conditions discharge because while on leave he decided not to return to military service but to remain at home and take care of his terminally ill grandfather; that he now has three sons in the Army National Guard and would like to gain more respect from them; and that he has no health insurance and needs medical assistance for his health problems.  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:

The applicant enlisted in the Regular Army on 18 June 1974, for a period of 
3 years.  He successfully completed basic and advanced individual training and was assigned to Fort Campbell, Kentucky.

On 27 July 1976, his commander preferred court-martial charges against him for being AWOL (absent without leave) for the period 11 February 1976 to 10 July 1976.

On 29 July 1976, the applicant, after consulting with legal counsel, voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu for trial by court-martial.

On 6 August 1976, the appropriate separation authority approved his separation, and authorized the issuance of an undesirable discharge and directed his reduction to pay grade E-1.

On 16 August 1976, he was separated with an under other than honorable conditions discharge, under the above cited regulation, in pay grade E-1.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 1 year and 
9 months of active service and 150 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 16 August 1976, the date of the applicant’s discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 August 1979.

The application is dated 15 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:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JH____  __KAK __  ___RWA_  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064513	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020205	
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.