MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR001066208

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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 under other than honorable conditions (UOTHC) be upgraded.  He states, in effect, that he should have received a better discharge, that discharge UOTHC was too severe.  He dates the discovery of the alleged error or injustice as “recent” and believes that the Board should find it in the interest of justice to consider the case because he needs medical care from the Department of Veterans Affairs (VA).

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 enlisted and entered active duty on 12 February 1980 at the approximate age of 181/2 years and with an 11th grade education.  He completed training as a heavy vehicle driver, was assigned to Korea in May 1980 and was 
reassigned to Fort Polk, Louisiana in May 1981.

The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for offenses of absence from his appointed place of duty, dereliction of duty and breaking restriction and he was convicted by a special court-martial of willful disobedience of the direct orders of a captain and a lieutenant colonel. 

He was separated with a UOTHC discharge on 20 January 1982 under the provisions of Army Regulation 635-200, chapter 14 for frequent incidents of a discreditable nature with civil or military authorities.  

The documents associated with the separation process are not of record.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. 

On 24 April 1987 the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

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 24 April 1987, the date of the ADRB review.  The time for the applicant to file a request for correction of any error or injustice expired on 24 April 1990.

The application is dated 9 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

_INW ___  __MMD__  __JTM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001066208	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020416	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820120	
DISCHARGE AUTHORITY	AR635-200, ch14	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.