MEMORANDUM OF CONSIDERATION 

	IN THE CASE OF:      

	BOARD DATE:           17 DECEMBER 2002                 
	DOCKET NUMBER:   AR2002076790

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. 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 bad conduct discharge be upgraded to honorable or general.  The applicant made no other statement.  

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 enlisted in the Army for three years on 1 October 1968, and was assigned to Fort Leonard Wood, Missouri for training.  On 4 December 1968 he received nonjudicial punishment under Article 15, UCMJ, for being absent from duty.  He completed training and was assigned to Fort Dix, New Jersey for advanced training.  

On 29 March 1969 he received nonjudicial punishment for AWOL from 21 March 1969 to 24 March 1969.  The applicant’s DA Form 20 (Enlisted Qualification Reocrd) shows that he was confined from 24 March to 26 March 1969.  On         2 April 1969 he received nonjudicial punishment for willfully disobeying a lawful command, and for disrespect to an NCO.  On 16 April 1969 he received nonjudicial punishment for failure to report to scheduled classes.

The applicant’s DA Form 20 shows that he was AWOL from 1 June 1969 to      20 July 1969.  

Before a special court-martial which convened on 10 October 1969, the applicant was arraigned, tried, and found guilty of disobeying a lawful order.  He was sentenced to confinement at hard labor for three months.  However, two months of the sentence was suspended.  His DA Form 20 shows that he was confined from 25 October 1969 to 23 November 1969.

Before a special court-martial which convened on 14 April 1970 at Fort Riley, Kansas, the applicant was arraigned, tried, and pled guilty to wrongfully possessing 50.21 grams, more or less, of marijuana; and escaping from lawful custody.  The record of trial shows that he was represented by counsel, that he voluntarily requested that a military judge hear his case, that he understood the meaning and effect of his guilty plea, and that he persisted in his plea of guilty.  The military judge accepted his voluntary plea of guilty.  He sentenced the applicant to be discharged from the Army with a bad conduct discharge, to forfeit $80.00 a month for 6 months; to be confined at hard labor for four months; and to be reduced to the grade of private E-1.  In accordance with the pre-trial agreement, the convening authority suspended for six months, the sentence of forfeiture of $80.00 a month for six months, and confinement at hard labor for four months.

On 10 August 1970 the Court of Military Review affirmed the findings of guilty and the sentence as approved.  On 5 January 1971 the sentence was ordered to be duly executed. 

The applicant’s DA Form 20 shows that he was AWOL on 4 April 1971 and that he had 57 days of lost time from 5 April 1971 to 31 May 1971 because he was dropped from the rolls. 

The applicant was discharged on 14 June 1971, under the provisions of Army Regulation 635-200, chapter 11.  He had 2 years, 3 months, and 21 days of service, and 111 days of lost time. 

Army Regulation 635-200, chapter 11, provides for a bad conduct discharge for a soldier pursuant to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

On 25 March 1982, the Army Discharge Review Board, in an unanimous opinion, 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.

There is no evidence, nor has the applicant provided any, to indicate that his bad conduct discharge was in error or unjust and as such there is no basis to correct his record to upgrade his discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 March 1982, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on         25 March 1985.

The application is dated 18 July 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.

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	AR2002076790	
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.