MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 MARCH 2002                   
	DOCKET NUMBER:   AR2001065425

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, 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:  In effect, that his discharge be upgraded.  Although the applicant's military service was uncharacterized, he states, in effect, that he would like his general discharge upgraded to an honorable discharge.  He notes that he recalls seeing a "court case" settlement posted in a "public building" during the early 1980's, which was "similar to [his] discharge," and believes his discharge should be upgraded as well.  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 9 December 1982.  While undergoing training at Fort Benning, Georgia, he was placed in an excess leave status (presumably because of the holiday season) between 25 December 1982 and 2 January 1983.

Upon resuming training, the applicant was counseled on three separate occasions for failing to meet minimum qualification standards on the M-16.  The applicant enlisted for training as an infantryman.

On 12 February 1983 the applicant's commander initiated action to separate the applicant, from active duty, under the provisions of Army Regulation 635-200, Chapter 11 (entry level status performance and conduct).  The commander cited the applicant's failure to qualify with the M-16 as the basis for his recommendation.  The applicant acknowledged receipt and waived his attendant rights.

The recommendation was approved, and on 1 March 1983 the applicant was discharged.  His service was "uncharacterized."

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.

It is possible that the applicant may, in his application to the Board, be referring to a 1979 court order, commonly is referred to as the "Giles Decision" which was a court-imposed program initiated in November 1979, which directed that an honorable discharge was mandated where the results of a compelled urinalysis given in connection with a drug treatment program were introduced by the government in the discharge process.  However, the Giles Decision would not have been applicable to the applicant since his separation was based on performance and not a urinalysis.

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, that his discharge was in error or unjust, and as such there is no basis to change the character of his service.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 March 1983, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 1 March 1986.

The application is dated 27 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 3 year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___SLP _  __SK ___  __EJA___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065425	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020319	
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.