MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 FEBRUARY 2002                   
	DOCKET NUMBER:   AR2001065068

	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:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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:  In effect, that his records be corrected to reflect that he was separated by reason of physical disability.  He states he "could not train" and that a lawyer promised him a medical discharge.  He also states that he was told if he accepted the undesirable discharge it would be “possible” to change it to a medical discharge later.  Although he cites his medical records from Fort Dix, New Jersey, and from Denver, Colorado, as evidence to support his request, he submits no medical records or evidence with his 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:

He served briefly with the U.S. Marine Corps between January and March 1970, but was discharged because he was a minor.

On 16 February 1971 he was inducted and entered active duty.  On 22 March 1971, while undergoing basic training at Fort Dix, he departed AWOL (absent without leave).  He returned to military control on 29 March 1971, was punished under Article 15 of the UCMJ (Uniform Code of Military Justice), and recycled to the 3rd week of basic training.

His records indicate that he was AWOL again in April 1971, and then reassigned from Fort Dix to the Medical Holding Company at Fitzsimons General Hospital on 15 April 1971.  There is no explanation for the reassignment and, except for a separation physical examination, his records do not contain any medical records.

On 6 May 1971 the applicant departed AWOL for a third time.  He remained absent until he was apprehended by civil authorities on 6 February 1973.  He was sent to the Personnel Control Facility at Fort George G. Meade, Maryland.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court- martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

The medical history, which he submitted for his medical examination for separation, indicated he suffered from depression and excessive worry.  However, the examining physician found him medically qualified for separation.

His request for separation was approved, and on 1 March 1973 the applicant was discharged "under conditions other than honorable" and was issued an undesirable discharge certificate.

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.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

There is no evidence, and the applicant has not provided any, which would serve as a basis for disability retirement or separation.  The applicant has also not shown that any disability he might have had, which may have served as a basis for disability retirement or separation, was the cause, or a substantial contributing cause, to the misconduct which resulted in his administrative separation.  As such there is no basis to correct the applicant’s records to show that he was separated by reason of disability.

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 1 March 1973, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 1 March 1976.

The application is dated 22 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

__JNS __  __BJE___  __JED __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065068	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020214	
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.