MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            05 JUNE 2003                  
	DOCKET NUMBER:   AR2002082308

	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. Arthur A. Omartian		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 his undesirable discharge be upgraded to honorable.

The applicant states that his court-martial for AWOL was neither unjust nor unfair.  He admits his mistake.  He was on emergency leave because his mother was very ill.  He should have returned to duty.  Since his discharge, he has been ashamed.  He has been unable to hold a good paying job.  He has carried his guilt for over 40 years.  He is almost 61 years old.   

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 in the Army for 3 years on 12 September 1961, completed training, and in February 1962 was assigned to an ordnance company in Germany.  

He was AWOL from 28 July 1962 until his apprehension by civil authorities in Chicago on 25 August 1962.  He was returned to military control the next day.  The applicant was in confinement from 26 August 1962 to 24 September 1962.  He was AWOL again from 27 September 1962 until his apprehension by military authorities in Chicago on 3 October 1962.  He was confined until                       21 December 1962.

The applicant was arraigned, tried, and pled guilty before a special court-martial which convened on 15 November 1962 at Fort Sheridan, Illinois, of two counts of AWOL, and one count of disobeying a lawful order.  He was sentenced to hard labor for 4 months in the post stockade.

A 17 October 1962 report of medical examination shows that the applicant was medically qualified for separation 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 his health was good.  That report did indicate that the applicant was worried about his mother's health because she had heart disease.

On 26 November 1962, the applicant underwent a psychiatric examination while at the post stockade.  The examining doctor stated that the applicant showed signs of an antisocial personality, that he displayed no guilt or shame for his AWOL offenses; and although he talked of wanting to help his mother and siblings, he appeared to maintain no real loyalty to anyone or anything.  The doctor stated that the applicant said that he wanted out of the Army under any type of discharge and would again go AWOL if reassigned.  He stated that the applicant frequently got into trouble and appeared to profit neither from experience nor punishment; and that future problems were to be expected if the applicant was retained in the service.  The doctor recommended that no further attempt at rehabilitation should be made since he was ineffectual to the service and could not be rehabilitated to the extent that he could be a satisfactory soldier. He recommended that the applicant be separated from the Army.  

On 13 December 1962 the applicant stated that he had been counseled and advised on the basis for the action recommended [discharge], had been afforded the opportunity of requesting counsel, but declined to do so, and declined to have his case heard by a board of officers.  He stated that he did not desire to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the under other than honorable discharge that he might receive.

On 13 December 1962 the applicant's commanding officer recommended to the separation authority that the applicant be discharged from the Army because of unfitness under the provisions of Army Regulation 635-208, and that he be furnished an Undesirable Discharge Certificate.  On 21 December 1962 the separation authority approved the recommendation.  The applicant was discharged on 22 December 1962.  He had 10 months and 19 days of service and 145 days of lost time.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, general or honorable discharge was authorized, as directed by the convening authority.
  
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 was in error or unjust, nor is there any mitigating evidence during his term of service that would warrant changing the character of his discharge.  Consequently, there is no basis to correct his record as he has requested.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 22 December 1962, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 December 1965.

The application is dated 20 October 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

__AAO__  __TBR __  __KAH __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002082308	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030605	
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.