MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           19 November 2002                  
	DOCKET NUMBER:   AR2002074800

	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. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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:  That his discharge be upgraded.

The applicant does not indicate the date of discovery of the alleged error or injustice.  He states that his "life has been living hell" and 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 25 January 1979.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11B (Infantryman). 

The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), five times for being absent without leave (AWOL) on seven different occasions.

On 15 November 1979, a summary court-martial found the applicant guilty of AWOL, 5 June 1979 through 20 July 1979 and 23 and 24 October 1979, and failure to follow orders.

In December 1979, the applicant was notified that his command intended to commence discharge processing.  He was afforded a physical examination and found to be qualified for separation.

On 29 January 1980, a formal recommendation was submitted to have the applicant discharged for misconduct, frequent incidents of discreditable act with civil or military authorities.  Attached to the recommendation was a list of 65 actions or incidents, 49 of the entries were for separate and distinct infractions or offenses.  The applicant waived his right to consult with counsel, have his case heard before a board of officers, to submit a statement on his own behalf and to be represented at a hearing by counsel.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an 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.

The discharge authority approved the recommendation and directed that the applicant be separated with an under other than honorable conditions discharge.

The applicant was discharged on 5 February 1980 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for frequent involvement in incidents of a discreditable nature with civil or military authorities.

The applicant failed to report for scheduled personal hearing, therefore, the Army Discharge Review Board (ADRB), reviewed his case based on the record and denied on 23 January 1986.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 January 1986, the date of the ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 23 January 1989.

The application is dated 29 March 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

__JNS___  ___SVW   __MHM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002074800	
SUFFIX		
RECON		
DATE BOARDED	20021119	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.