MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            30 JANUARY 2003                 
	DOCKET NUMBER:   AR2002078192

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yalonda Maldonado		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 records be corrected by upgrading his discharge.  The applicant states that he signed papers not fully understanding what he was signing, and was never told how or where he could go for help.   

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 29 July 1968, he enlisted in the Regular Army for a period of 3 years.  He completed basic combat training at Fort Leonardwood, Missouri and advanced individual training at Fort Knox, Kentucky.  He served in Vietnam from March 1969 to September 1970.

The applicant was promoted to pay grade E-2, E-3 and E-4 on 29 November 1968, 
15 March 1969 and 28 September 1969, respectively.

On 22 February 1970, he accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 7 February 1970 to 19 February 1970.  His punishment was reduction to the pay grade of E-3.

On 1 June 1971, he was convicted by a summary court-martial of being absent without leave (AWOL) from 5 January 1971 to 12 April 1971.  His sentence included reduction to pay grade E-2 and a forfeiture. 

Evidence shows that on 8 July 1971, the applicant was reduced to the pay grade of E-1, for misconduct.  No additional information is available on this reduction.

The facts and circumstances concerning the applicant’s discharge are not in the available records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he was separated on 8 September 1971 under the provisions of Army Regulation 635-200, chapter 10, with an undersirable discharge.  His DD Form 214 indicates he had 2 years, 8 months and 9 days of creditable service and 
151 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. 

In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

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 8 September 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 8 September 1974.

The application is dated 29 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

__WTM  _  __CJP __  __YM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002078192	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030130	
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.