MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           7 May 2002                  
	DOCKET NUMBER:   AR2001066130

	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. Samuel A. Crumpler		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Kenneth W. Lapin		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 opinions, if any).

APPLICANT REQUESTS:  That his general discharge be upgraded or changed to a hardship discharge.  He states, in effect, that his AWOL (absence without leave) was mitigated by his mother’s illness and his father death. The applicant does not indicate the date of discovery of the alleged error or injustice.  He offers no reason 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 records show:

The applicant entered active duty on 25 August 1966 at age 20 with a 7th grade education.  He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty 76Y(Supply Clerk). 
Upon completion of AIT, the applicant served in Germany from 10 January 1967 through 22 September 1967 and subsequently in Vietnam from 26 November 1967 through 30 June 1968.  These periods of foreign service are not reflected on his Certificate of Release or Discharge From Active Duty (DD Form 214).  The applicant was advanced to the rank of Specialist Fourth Class (E-4) in September 1967.

On 30 June 1968, he was granted 30 days emergency leave apparently due to his father’s death.  The applicant’s records are incomplete from this point forward.  Apparently he went AWOL and did not return to military control until 25 March 1969.  He was held in confinement until 13 April 1969, at which time he was afforded a psychiatric examination.  This examination and a subsequent physical examination are not of record, however, it was reported that the psychiatrist diagnosed the applicant as suffering from an immature personality but cleared him for any administrative disposition.  He was found to meet the medical retention standards of Army Regulation 40-501 and was qualified for separation.

The applicant’s immediate commander appears to have started administrative discharge action in March 1969 although none of the documentation of this action is of record.  Administrative discharge actions were again recommended on 6 June 1969.  The documentation for this action indicates that the applicant had been AWOL for two periods, from 30 July 1968 to 25 March 1969 and from 21 April 1969 through 28 April 1969, and that he had two periods of confinement, 26 March 1969 to 13 April 1969 and 16 May 1969 to 2 June 1969.  It also indicates that, on 16 May 1969, the applicant had been convicted by a Special Court-Martial for the above periods of AWOL.

There are indications that the applicant was tried by a second Special Court-Martial for a third period of AWOL, 16 May 1969 through 12 June 1969. 

The discharge authority approved the 6 June 1969 recommendation for discharge and directed that he be separated with an undesirable discharge under the provisions of Army Regulation 635-212.  The applicant was discharged 1 July 1969 for misconduct, frequent incidents of a discreditable nature with civil or military authorities with a characterization of service of under other than honorable conditions.  The applicant had 2 years, 16 days of creditable time and 294 days lost time.

The applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  By a 3 to 2 vote the ADRB granted an upgrade to general (under honorable conditions) on 6 April 1981, but unanimously voted not to change the narrative reason for discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 April 1981, the date of ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 6 April 1984.

The application is dated 10 January 2002 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.

(NOTE:  ARBA, St. Louis will be requested to correct the applicant’s DD Form 214 to reflect his period of foreign service.)

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_SAC ___  __JTM  __  _KWL__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001066130	
SUFFIX		
RECON		
DATE BOARDED	20020507	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	A93.07	
3.		
4.		
5.		
6.