MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 DECEMBER 2002                  
	DOCKET NUMBER:   AR2002076684

	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. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Powers		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:  In effect, that his "other than honorable" conditions discharge be upgraded to honorable.  He makes no statement and submits no evidence in support of his request.

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 for a period of 3 years on 11 October 1977 at the age of 18.  He successfully completed training and in March 1978 was reassigned to Europe.  However, on 6 March 1978, prior to reporting for transportation to Europe, the applicant was reported as being absent without leave.  A 7 March 1978 commander's inquiry indicated that the applicant had told a "close friend" that he [the applicant] wanted to get out of the Army ever since he began advanced individual training.  The applicant indicated to the friend that he wanted out of the Army "no matter how."  The commander also noted that the applicant reported that his mother was having trouble with his handicapped brother but when counseled about his problems at home "admitted he wasn't really sure how serious the problem was."  

In October 1978 the applicant was apprehended by military authorities and returned to military control.

Although documents associated with his administrative separation were not in records available to the Board, his separation document indicates that he was discharged on 20 November 1978, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The applicant's service was characterized as "under conditions other than honorable."  The applicant had less than 7 months of active Federal service at the time of his discharge and more than 200 days of lost time.

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.  

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade 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.  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, which indicates that his discharge was erroneous or improper.  In the absence of such evidence, the Board presumes regularity.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 20 November 1978, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 20 November 1981.

The application is dated 25 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

__LLS __  __BJE___  __WDP  _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076684	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021217	
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.