MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:       

	BOARD DATE:            17 DECEMBER 2002                  
	DOCKET NUMBER:   AR2002078150

	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	
	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:  That his undesirable discharge be upgraded to a general or honorable discharge.

The applicant states that he was unable to perform his military duties, and that he went AWOL because he was denied a medical discharge.   

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 two years on 30 July 1971 and was assigned to Fort Dix, New Jersey for training.  

The applicant’s DA Form 20 shows that he had three periods of AWOL, from    11 October to 3 December 1971; from 10 January to 11 June 1972, and from      5 July to 29 August 1972.  Orders assigning him to the Personnel Control Facility at Fort Belvoir, Virginia, show that he was apprehended by civil authorities [while AWOL] for charges of non-support, tried and sentenced to 6 months at a Virginia Correctional Farm, and released from civil authorities on 12 June 1972.

On 7 September 1972 charges were preferred against the applicant for his three periods of AWOL.

A 13 September 1972 report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  The applicant met the medical standards for retention in the Army.
 
A 13 September 1972 report of medical examination shows that the applicant was physically fit for retention with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that the applicant furnished for the examination, he stated that this health was good.

On 18 September 1972 the applicant consulted with counsel and requested discharge from the Army for the good of the service in accordance with the provisions of Army Regulation 635-200, chapter 10.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf. 

In endorsing his request, his commanding officer stated that he had conducted an interview with the applicant, that the applicant stated that his periods of AWOL were caused by his financial problems, and that his wife left him, so he stayed at home to try to straighten things out.  He indicated to his commanding officer that his problems were still not resolved, and that he would go AWOL again if his request for discharge was not approved.  

On 3 October 1972 the separation authority approved the applicant’s request and directed that he receive an Undesirable Discharge Certificate.

The applicant was discharged on 25 October 1972.  He had 6 months and 1 day of service and 264 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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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, nor has the applicant provided any, to indicate that his discharge under conditions other than honorable 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 October 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 October 1975.

The application is dated 27 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	AR2002078150	
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.