MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:              25 February 2003                
	DOCKET NUMBER:     AR2002075262

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Lawrence Foster		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 general under honorable conditions discharge be upgraded to honorable.  He provides a copy of a memorandum for the commander, 2d Armored Division, dated 31 January 1994 from his defense counsel, at the time.

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:

On 3 April 1991, the applicant enlisted in the Army and was trained as an Armor Crewman.

On 1 December 1993, he was convicted by a Special Court-Martial of assault with a means likely to product death or grievous bodily harm, being disorderly, and unlawfully striking a soldier with glass from a glass bottle on the leg on       22 June 1993.  His sentence included a forfeiture of $543 pay per month for        4 months, reduction to pay grade E-1, confinement at hard labor for 4 months and a bad conduct discharge (BCD).

On 24 March 1995, he was discharged with a BCD under Army Regulation 635-120, based on his court-martial conviction.  His separation document indicates he had 3 years, 8 months and 19 days of creditable service and 92 days of lost time.

On 10 October 1997, the Army Discharge Review Board found his discharge to be proper but inequitable and recommended an upgrade to general, under honorable conditions.

On 18 October 1997, his discharge was upgraded accordingly.

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.

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 18 October 1997, the date the ADRB upgraded his BCD to general.  The time for the applicant to file a request for correction of any error or injustice expired on 18 October 2000.

The application is dated 16 May 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 the 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 the application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_JNS____  _REB___  _LF_____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002075262	
SUFFIX		
RECON		
DATE BOARDED	20030225	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19950324	
DISCHARGE AUTHORITY	AR 635-120	
DISCHARGE REASON	As a result of a court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105	
2.		
3.		
4.		
5.		
6.