MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            01 OCTOBER 2002                  
	DOCKET NUMBER:   AR2002076051

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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:  In effect, that money taken from his pay in 1974 be restored to him.  He states, in effect, that he had money taken from him in 1974 as a result of punishment under Article 15 of the Uniform Code of Military Justice. He states that there is "no record of actions of an Article 15" and that he was told there was a mix-up in social security numbers.  The applicant submits no evidence in support of his request.  The applicant does state that he has submitted evidence previously, but there was no record of any such correspondence in files available to the Board.

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 entered active duty in September 1973 and was assigned to Korea in February 1974.  He was promoted to pay grade E-3 in September 1974.

Although the applicant's file does not contain copies on any non-judicial punishments, a document barring him from reenlisting does note that he was punished under Article 15 of the Uniform Code of Military Justice in November 1974 for being absent from a formation and in December 1974 for possession of marijuana.  Punishment from both actions included forfeiture of pay.  The November action also included a suspended reduction to pay grade E-2 that was vacated in December.  Orders contained in the applicant's file confirm that he was reduced from pay grade E-3 to pay grade E-2 effective 2 December 1974 as a result of misconduct.

In December 1974 the applicant's unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge).  The applicant's commander cited several counseling statements, and the applicant's two non-judicial punishment actions, as the basis for his recommendation.  The applicant acknowledged receipt of the proposed separation and did not submit any statements in his own behalf.

The recommendation was approved and on 10 February 1975 the applicant was discharged.

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, and the applicant has not provided any, that money was erroneously taken from him in 1974.  Although copies of the actual Article 15's may not be in his file, there are sufficient other documents to confirm that the applicant was in fact punished under Article 15 of the Uniform Code of Military Justice, and his punishment included forfeitures of pay.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 February 1975, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 10 February 1978.

The application is dated 12 June 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

__RVO__  __MKP __  __AAO__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076051	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021001	
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.