MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 SEPTEMBER 2002                  
	DOCKET NUMBER:   AR2002075523

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Ms. Karen A. Heinz		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 the reason for his discharge be changed to reflect "breach of contract" so that he can receive VA benefits.  He states that he enlisted "for Hawaii" but "they wanted [him] to go to Germany" and he "didn’t want to go" and was therefore "put out [with] no benefits."  He submits no evidence in support of his request, but does submit a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 under the Delayed Entry/Enlistment Program on 5 September 1979 and entered active duty on 7 September 1979.  His enlistment contract indicates that he enlisted for the "Training of Choice" option (72E-Telecommunication Center Operator), but not for a "Unit" or "Station" of choice option.

The applicant arrived at Fort Gordon, Georgia and on 13 September 1979 commenced OSUT (One Station Unit Training).  It appears he successfully completed basic training and commenced his specialty training in January 1980.

On 21 January 1980 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for two counts of failing to be at his place of duty, two counts of attempting to enter an off-limits area, and one count of dereliction of duty.  On 25 February 1980 the applicant's unit commander blocked his promotion to pay grade E-2 citing the applicant's poor duty performance.

In March 1980 the applicant was punished again under Article 15 of the UCMJ for sleeping while on guard duty.

On 27 March 1980 the applicant acknowledged notification that his unit commander was recommending that he be administratively separated from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program).  The unit commander cited the applicant's unwillingness to adapt socially and emotionally to the military, and behavior characteristics, which were not compatible with continued military service, as the basis for his recommendation.  In his acknowledgement, the applicant indicated that he was voluntarily consenting to the separation action.

The recommendation was approved and on 28 March 1980 the applicant was released from active duty with an honorable characterization of service.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of  enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

At the time the applicant was separated, he had 6 months and 22 days of active Federal service.

There is no evidence that the applicant applied to the Army Discharge Review Board to have the reason for his discharge changed 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.  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.

There is no evidence, and the applicant has not provided any, that his enlistment contract include an assignment of choice.  Rather, the evidence indicates the applicant was administratively separated, prior to completion of training, under the Expeditious Discharge Program after several incidents of misconduct.  There is no evidence that his enlistment contract was "breached" and as such no basis to change the reason for his separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 28 March 1980, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 28 March 1983.

The application is dated 10 June 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 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__EJA __  __TBR __  __KAH __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002075523	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020917	
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.	110.00	
2.		
3.		
4.		
5.		
6.