MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 JANUARY 2003                 
	DOCKET NUMBER:   AR2002076517

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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 his undesirable discharge be upgraded. He states, in a self-authored statement, that he was recruited to join the "All Volunteer Army" in 1973 by a recruiter in Smithfield, North Carolina.  He states that in spite of being classified as "4-F" his recruiter changed his classification to "1-A" by "putting a part of another classification card in part (1-A)."  He states that all he wanted to do was serve in the military, that jobs were scarce, and he was about to lose his house.  He notes he was "slow to learn and couldn't adjust to military ways of life."  He states that he accepted the "Chapter 10 order by officials in [his] court hearing" but was not aware that "it was a[n] undesirable discharge."  He states that he is now 53 years old, suffering from depression, and does not believe he should have received an undesirable discharge.  Other than his self-authored statement, the applicant submits no evidence in support of his request.

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 enlisted and entered active duty for a period of three years on 8 March 1973. His enlistment contract included training as a cook.  The applicant, a high school graduate, was days away from turning 24 years old at the time of his enlistment.  Although his GT (general technical) score was 67, he was found mentally and medically qualified for enlistment in the Army.

The applicant successfully completed basic training at Fort Jackson, South Carolina.  He received excellent conduct and efficiency ratings while in basic training.

On 25 May 1973 the applicant was assigned to another unit at Fort Jackson for the purpose of advanced individual training.  On 11 June 1973 he was reported as being absent without leave.  He returned to military control on 14 June and was punished under Article 15 of the Uniform Code of Military Justice.  On 
19 June 1973 he was again reported as being absent without leave.

Civilian authorities apprehended the applicant on 1 August 1973.  When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. 
In a statement submitted on his own behalf he noted that he just wanted out of the Army and that he would continue to "screw up" until he was discharged.  He said he just couldn't follow direct orders and would get nervous when he was told to do something and then forgot.

The medical history, which he submitted for his medical examination for separation, indicated he suffered from depression and excessive worry.  However, the physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.

According to the applicant's administrative separation package, he again departed absent without leave on 14 August 1973, prior to completion of his separation processing.  The applicant's request for separation was approved and on 5 September 1973 the applicant was discharged under other than honorable conditions.  He had apparently returned from being absent without leave because he authenticated his separation document.  He was issued an undesirable discharge certificate.  At the time of his separation he had less than 5 months of creditable service and more than 45 days of lost time.

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.

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.

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 his enlistment or separation was erroneous or unjust.  The Board notes the applicant was a successful high school and basic training graduate.  He has submitted no evidence which would serve as a basis to grant his request based on equity.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 September 1973, the date the applicant was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
5 September 1976.

The application is dated 10 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 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

__KAK __  __MHM      ___TLP _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076517	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030128	
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.