MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           07 MARCH 2002                  
	DOCKET NUMBER:   AR2001065595

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 undesirable discharge be upgraded. He states that he did not have x-rays for 4 days after he broke his neck.  He notes that he discovered the "alleged error or injustice" in January 2001 when he "tried [to] receive medical attention."  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 28 September 1970 and in August 1971 was transferred from Europe to a military hospital in Denver in a patient status.  His separation physical examination, conducted in January 1973, notes the applicant was treated for a "broken neck" in August 1971.  In December 1971, while still assigned to the Medical Holding Detachment of the military hospital, the applicant was promoted to pay grade E-3.

In January 1972 the applicant commenced a series of AWOL (absent without leave) periods, which ultimately led to his apprehension by civilian authorities in January 1973.

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 under the provisions of Army Regulation 635-200, Chapter 10.  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.  In a statement submitted on his own behalf he noted that he despised the Army, that he could not do anything for the Army, and that the Army could not do anything for him.  He also indicated that he did not believe the "type of discharge will hurt me back on the block" and that he just wanted to get out.

The medical history, which he submitted for his medical examination for separation, indicated he had been treated for a broken neck in 1971 and the examining physician noted that his neck had healed.  He was found medically qualified for separation without a physical profile.

A mental health evaluation found the applicant fully alert and oriented, his memory good, and his thought process clear and normal.  It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The separation authority approved the applicant's request for separation and directed that an Undesirable Discharge Certificate be issued.  On 3 April 1973 the applicant was discharged.  He had approximately 19 months of creditable service and more than 300 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.  The regulation provided for the issuance of an Undesirable Discharge Certificate.

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.

There is no evidence, nor has the applicant provided any, which would serve as a basis for the Board to upgrade his discharge.  There is no evidence that his 1971 medical condition contributed to the reason for his separation action.

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 3 April 1973, the date the applicant was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
3 April 1976.

The application is dated 5 November 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

___RVO _  __JPI___  __RKS   _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065595	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020307	
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.