MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           11 April 2002                  
	DOCKET NUMBER:   AR2001064753

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Richard T. Dunbar		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:  That his uncharacterized discharge be upgraded to fully honorable.  

The applicant indicates that he is unsure of the date of discovery of the alleged error or injustice.  He states that he needs the upgrade to join the National Guard and believes that 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 18 March 1986 at age 23 with 12 plus years of formal grade education.  He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty (MOS) 12B (Combat Engineer). 

In June of 1986, the applicant’s command received notification that the applicant had not divulged his pre-service involvement with the law on six occasions.  He was offered an opportunity to submit a statement on his own behalf which he did requesting continuation on active duty.

On 13 July 1986, after conferring with legal counsel the applicant acknowledged his rights and waived his right of review before an administrative separation board and to provide written statements on his own behalf.

His chain of command reviewed the evidence and recommended that he be separated from active duty for fraudulent entry and that he receive an entry-level separation.  The discharge authority concurred with the recommendation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 7-17b(3).

On 22 July 1986, the applicant was discharged for fraudulent entry and given an uncharacterized discharge.

There is no indication that the applicant had applied to the Army Discharge Review Board for consideration of his case.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

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 22 July 1986, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 July 1989.

The application is dated 11 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

__MKP__  ___EJA__  __RTD__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064753	
SUFFIX		
RECON		
DATE BOARDED	20020411	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.62	
2.		
3.		
4.		
5.		
6.