MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           4 February 2003                  
	DOCKET NUMBER:   AR2002074798

	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:

| Mr. Melvin H. Meyer | | Chairperson
| Mr. Curtis L. Greenway | | Member
| Mr. Ronald J. Weaver | | 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 discharge be upgraded.  He states that he is proud to be an American as his rational for requesting a waiver of the statute of limitations.

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 that:

The applicant entered active duty on 2 May 1968.  He completed basic combat training and advanced individual training.  

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for two periods of being absent without leave (AWOL), 31 May through 12 June 1968 and 15 July through 5 August 1968.

On 2 June 1969, a special court-martial found him guilty of three periods of AWOL, 3 through 10 September 1968, 13 September through 10 October 1968, and 14 October 1968 through 25 March 1969.  The applicant escaped from confinement to go AWOL for the third period adjudged by this court-martial.

The applicant went AWOL a sixth time on 20 July 1969 and remained absent until 10 February 1970.

Although the applicant's complete discharge packet is not of record, the record shows that on 11 March 1970, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

On 25 March 1970, the discharge authorities approved the request for discharge under Army Regulation 635-200, chapter 10 and directed that the applicant be reduced to the lowest enlisted grade (E-1) and receive an Undesirable Discharge.

The applicant was discharged on 1 April 1970 with an Undesirable Discharge.  He had only 3 months and 19 days of creditable service with 590 days lost due to AWOL or confinement.

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.

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.

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.

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 1 April 1970, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 April 1973.

The application is dated 18 May 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

__MHM__  __CLG__  __RJW __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID | AR2002074798
SUFFIX |
RECON |
DATE BOARDED | 20030204
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 19700401
DISCHARGE AUTHORITY | AR635-200, CH10. . . . .
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 144
2. |
3. |
4. |
5. |
6. |