MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 April 2002                  
	DOCKET NUMBER:   AR2001064320

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Richard T. Dunbar		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 opinions, if any).

APPLICANT REQUESTS:  In effect that his under other than honorable conditions discharge be upgraded.

He states that he finished one enlistment but that after he reenlisted, he could not adjust. 

The applicant indicates that the date of discovery of the alleged error or injustice was 10 June 2001.  He offers no reason as to why it would be in the interest of justice for the Board to consider this application.

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 entered active duty on 23 January 1979 at age 18 with an 11th grade education.  He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty (MOS) 13B (Field Artillery Crewmen).  He reenlisted on 21 December 1981.  The highest rank he held was corporal (E-4).

On 25 October 1982, the applicant sustained a gunshot wound to his left calf.  The line of duty investigation concluded that not only was he “absent without authority” at the time of the incident but his statement as to the cause of the gun shot wound was not creditable.  The final determination was that the injury was not in the line of duty and was due to his own misconduct. 

The applicant is shown to have been Absent Without Leave (AWOL) on five occasions, 24 January 1980 through 5 February 1980, 16 November 1982 through 18 November 1982, 25 January 1983 through 1 February 1983, 10 February 1983 through 14 February 1983, 23 February 1983 through 17 June 1983, for a total of 144 days of lost time.

The applicant’s records show that he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) at least 5 occasions: 13 February 1980 for his first period of AWOL; 19 March 1980 for assault and communicating a threat; 2 August 1982 for failure to go to his appointed place of duty, this action also resulted in his removal from the Noncommissioned Officers Academy Basic Course; 21 December 1982 for his second AWOL period; 24 July 1983 for failure to go to his appointed place of duty on 9 August, 11 August and 19 August 1983.  There is an indication that the applicant may have received NJP for his third and fourth periods of AWOL but the documentation is not of record.  

On 2 August 1983, court-martial charges were preferred against the applicant for his fifth AWOL period.  On 3 August 1983, after consultation with military counsel the applicant submitted a Request for Discharge for the Good of the Service (FB Form 2648-R), under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged and waived his right to submit a statement on his own behalf and to have a separation physical examination.  He acknowledged that if his request were accepted that he might be discharged under other than honorable conditions and the bar to benefits that this type of discharge would result in.

The court-martial authority accepted the applicant’s request and directed that he be discharged under the provisions of AR 635-200, chapter 10 with an under other than honorable conditions discharge, that he be reduced to the lowest enlisted grade and that the court-martial charges be dismissed effective the date of discharge.  

The applicant was discharged under other than honorable conditions for the good of the service – in lieu of court-martial on 18 November 1983.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within the statutory 15 years allowed for review by that Board.  

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.

Under the UCMJ, Table of Maximum Punishments, a punitive discharge is included in the authorize punishment for periods of AWOL in excess of 30 days.

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 18 November 1983, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 18 November 1986.

The application is dated 9 October 2001 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

__MKP__  ___EJA__  __RTD__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR 2001064320	
SUFFIX		
RECON		
DATE BOARDED	20020411	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	143.00	
2.		
3.		
4.		
5.		
6.