MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 JANUARY 2003                  
	DOCKET NUMBER:   AR2002077347

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yalonda Maldonado		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 general discharge be upgraded to honorable.  He states that he was not given a choice of a hearing or a court-martial.  

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 20 January 1973, he enlisted in the Regular Army for a period of 3 years.  

Between October 1973 and April 1974, he received numerous nonjudicial punishments under the provisions of Article 15, Uniformed Code of Military Justice for being absent without leave (AWOL), disobeying a lawful order, and for failing to go to his appointed place of duty on several occasions.  His punishments included reduction, forfeitures, restriction and extra duty.

On 15 January 1975, his commanding officer notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-37, the Army’s Expeditious Discharge Program, with a general discharge.  The commander’s proposed action was based on the applicant’s blatant disregard for orders and regulations which had resulted in numerous nonjudicial punishments and counselings, as well as his apathy and inability to adapt to military life.  

On 16 January 1975, having been advised of his rights, the applicant acknowledged notification of the contemplated action to discharge him from the Army.  He voluntarily consented to the discharge, and waived his rights to counsel.

On 20 January 1975, the appropriate separation authority approved the applicant’s discharge under the provisions of the above cited regulation and directed the issuance of a general discharge certificate. 

On 22 January 1975, the applicant was discharged in the pay grade of E-3, under the provisions of Army Regulation 635-200, paragraph 5-37.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 1 year, 4 months and 13 days of active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, for the convenience of the Government.  Paragraph 5-37 provided the policies and procedures for separating enlisted personnel under the Army’s Expeditious Discharge Program.
The applicant was advised of his rights and voluntarily consented to the discharge. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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 22 January 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 22 January 1978.

The application is dated 8 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

__WTM  _  __CJP__  ___YM  __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002077347	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030130	
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.