MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  3 July 2003
	DOCKET NUMBER:  AR2002080095

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Patrick H. McGann		Member	
	Ms. Kathleen A. Newman		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 narrative reason for separation be changed.  The applicant provides no detailed information as to the change he desires or reason for change.

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 on 1 June 1972, as a light wheel vehicle mechanic.  He continued to serve through a series of continuous reenlistments.

He was promoted to SP4/E-4 effective 1 September 1973.  

Between April 1974 and October 1978, he received nonjudical punishment on eight occasions under Article 15, Uniform Code of Military Justice (UCMJ), for violation of a lawful general regulation on five occasions, being absent from his appointed place of duty on two occasions, and for dishonored checks on three occasions.  His punishments consisted of forfeitures of pay, several reductions to PFC/E-3 and PVT/E-1, restrictions, and extra duties.  

On 10 February 1981, the applicant was convicted by a civil court for rape and assault with a deadly weapon on 19 October 1980.  He was also charged with sodomy, breaking and entering, and attempted armed robbery.  He was placed in civilian confinement and sentenced to 8 years in a state prison.  

On 23 March 1981, the applicant filed an appeal to his conviction.

On 4 December 1981, the applicant was considered for separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct-civil conviction.

On 28 January 1982, the applicant's commander recommended that he be discharged for misconduct-civil conviction.  He based his recommendation on the applicant’s civil conviction, 318 days lost time, record of disciplinary actions, and current status of civil confinement.

After consulting with counsel, the applicant requested a personal appearance and consideration of his case by a board of officers.  He also requested representation by counsel and elected not to submit statements in his own behalf.

On 12 February 1982, he was ordered to appear before a board of officers on 9 March 1982.  The applicant's counsel appeared without the applicant due to his present status of civil confinement.

The Board of officers recommended that the applicant be discharged due to his misconduct with issuance of a general discharge.  The convening authority approved the findings and recommendations of the board on 18 March 1982 and directed separation with a general discharge.  

The applicant was discharged on 21 June 1982, under the provisions of 
AR 635-200, chapter 14, misconduct-civil conviction.  He was issued an under other than honorable conditions discharged.  

Orders separating the applicant with an effective date of 21 June 1982 were revoked on 17 June 1982.

23 September 1982, the installation Assistant Adjutant prepared a Memorandum For Record indicating that the applicant was discharged due to an administrative error in accordance with Army Regulation 635-200, chapter 14, paragraph 14-13.

On 2 October 1982, the applicant applied to this Board for relief.  His case was forwarded to proper headquarters for appropriate action.  On 10 March 1983, an advisory opinion was provided by the Judge Advocate General requesting that appropriate action be taken.  However, this advisory opinion is unavailable for review.  

The applicant's DD Form 214 was reissued to show a separation date of 8 May 1985, with the issuance of a general discharge.

Item 28 (Narrative Reason for Separation) of his DD Form 214, dated 8 May 1985, reads "Civilian Conviction", which was the regulatory reason for his separation.

Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows that he was in civilian confinement from 25 October 1980 to 8 May 1985 (1,657 days).

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.

Army Regulation 635-200 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, patterns of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 8 May 1985, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 8 May 1988.

The application is dated 11 December 2001 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__ro___  __pm__  ___kn___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002080095	
SUFFIX		
RECON		
DATE BOARDED	20030703	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19850508	
DISCHARGE AUTHORITY	AR 635-200, chapter 14	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.