MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 February 2003                  
	DOCKET NUMBER:   AR2002076417

	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. Lee Cates 		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Robert J. Osborn, II 		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 records be corrected to show he was honorably discharged.  He indicates the punishment was harsh considering his Vietnam service and the stress he was under after being wounded in Vietnam. 

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:

On 1 June 1966, the applicant enlisted in the Army and was trained as a Communication Crewman.

During the period 4 May to 8 June 1968, he served in Vietnam as an Armor Intelligence Specialist.  He received a gunshot wound to the arm and was evacuated.  His DA Form 20 (Enlisted Qualification Record) shows that he was awarded the Purple Heart.

On 28 September 1968, he absented himself without authority.

On 8 December 1969, he was convicted in civil court on two charges of burglary in Knox County, Tennessee and was sentenced to serve three (3) years in the Tennessee State Penitentiary.

On 19 June 1970, the unit commander recommended the applicant be discharged under Army Regulation 635-206, based on his civil conviction.

On 23 June 1970, the appropriate separation authority approved the discharge and directed an Undesirable Discharge Certificate be issued and that he be reduced to the lowest enlisted grade.

On 7 August 1970, the applicant was discharged with a under conditions other than honorable discharge, under the above-cited regulation.  His DD Form 214 (Report of Transfer or Discharge) indicates he had 2 years, 8 months and         10 days of creditable service and 543 days of lost time.

On 17 December 1985, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for upgrade.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  
Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be take to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 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 17 December 1985, the date the ADRB denied the request for upgrade.  The time for the applicant to file a request for correction of any error or injustice expired on 17 December 1988.

The application is dated 5 July 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 the 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 the application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_GJW___  _RJO____  _RVO__   CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076417	
SUFFIX		
RECON		
DATE BOARDED	20030213	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700807	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	Conviction by civil authorities	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.