MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                  
	DOCKET NUMBER:   AR2001065966

	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:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 changed from under other than honorable conditions (UOTHC).  He states, in effect, that he had two periods of service and the discharge document (DD Form 214) does not define what an UOTHC means or what period of enlistment it covers.  

The applicant indicates that the date of discovery of the alleged error or injustice was July 2001.  He states that "the wording of the discharge makes it very unclear of what other than honorable means" as to why it 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 record shows that:

The applicant entered active duty on 30 January 1975 on a three-year active duty obligation.  He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty (MOS) 72E (Telecommunication Center Specialist).  The applicant attained the rank of specialist four on 1 August 1976.  

He reenlisted on 26 August 1977.  At this time the applicant was issued a DD Form 214 that showed that he had served honorably for 2 years, 6 months, and 26 days.  

On 20 January 1978, the applicant again attended AIT for training and was awarded the MOS of 94B (Cook).

The applicant's record shows that he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice on 3 September 1975 for failure to go to his appointed place of duty and again on 8 December 1978 for willfully disobeying a lawful order from a noncommissioned officer.  

He was reported absent without leave (AWOL) from 23 May 1979 through 12 November 1979, and was shown to be in an excess leave status from 20 November 1979 through 11 January 1980.

The applicant's DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200, chapter 10, under other than honorable conditions, by reason of an administrative discharge for conduct triable by a court-martial on 11 January 1980.  He has served 1 year, 10 months, and 22 days on this enlistment.

There is no evidence that the applicant applied to the Army Discharge Review Board for review 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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the    3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation sets forth the standards and provisions for the characterization of a soldier's period of service.  In pertinent part, section 3-7c describes the justification for issuance of an Under Other Than Honorable Conditions discharge as a significant departure from the conduct expected of a soldier.  

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 11 January 1980, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 11 January 1983.

The application is dated 6 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

_MDM___  __LE ___  __KYF __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065966	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.	144.6301	
3.		
4.		
5.		
6.