MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           05  MARCH 2002                   
	DOCKET NUMBER:   AR2001065286

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Mr. Donald P. Hupman, Jr.		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 be upgraded to honorable.  He states, in effect, that his discharge should have been honorable.  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:

He entered active duty on 13 October 1978 and successfully completed basic and advanced individual training.  

In June 1979, while assigned to Fort Knox, Kentucky as a track vehicle mechanic, he was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for failing to go to his appointed place of duty.  In September 1979 he was AWOL (absent without leave) for several days but there is no evidence of any disciplinary action for that AWOL period.

On 5 November 1979 the applicant again departed AWOL.  

He was dropped from the rolls of the Army on 5 December 1979 and remained absent until he returned to military control in July 1980. 

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 under other than honorable 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.

His request was approved and on 18 September 1980 he was discharged under other than honorable conditions.  

At the time of his separation he had approximately 14 months of creditable service and more than 250 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 is 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.

There is no evidence, and the applicant has not provided any, which would serve as a basis to upgrade the character of his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 September 1980, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 September 1983.

The application is dated 26 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

___FNE _  __TPR __  __DPH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065286	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020305	
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.