MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 10 April 2001
         DOCKET NUMBER: AR2001052351


         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:

Ms. Sherri V. Ward		Chairperson
Mr. George D. Paxson		Member
Mr. James E. Anderholm		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable and that his Reentry Code (RE) of RE-3 be upgraded to RE-1. He indicates his commander had approved for him to attend college at night and then started to send him on field operations that would obviously interfere with his school. He admits to all the time absent without leave (AWOL). He provides a list of all his certifications and credits attained since his discharge.

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 27 June 1985, he enlisted in the Regular Army (RA). He completed his required training and was awarded military occupational specialty 16S (Man Portable Air Defense Pedestal Mounted Stinger Crewmember). He was promoted to pay grade E-5 on 1 April 1989.

During the periods 24 September to 27 October 1989, 3 November 1989 to 28 March 1990 and 8 May to 5 December 1990 he was AWOL.

On 7 December 1990, he indicated that he did not desire a separation medical examination.

On 13 December 1990, the unit commander preferred court-martial charges against him, for being AWOL for the periods shown above.

On 13 December 1990, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged that he was guilty; that he could receive a discharge under other than honorable conditions (UOTHC); and that he understood the effects of receiving such a discharge. He indicated he had consulted with legal counsel, that he had been fully advised of the nature of his rights, and the facts whch must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty. He also was informed of the possible defenses, which appeared to be available at the time and the maximum permissible punishment if he were found guilty.

On 20 December 1990, the appropriate separation authority approved his request and directed his discharge UOTHC with issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

On 31 January 1991, he was discharged UOTHC, under the above cited regulation. His separation document indicates he had 4 years, 6 months and 10 days of creditable service and 389 days of lost time. He was assigned a RE-3 code.

On 17 July 1996, the Army Discharge Review Board (ADRB) found his discharge to be proper and equitable and denied his request for an upgrade.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received a discharge under chapter 10, Army Regulation 635-200 are so disqualified.

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.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

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 Discharge Review Board (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.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 17 July 1996, the date the ADRB denied his request for upgrade. The time for the applicant to file a request for correction of any error or injustice expired on 17 July 1999.

The application is dated 18 January 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

_jea___ _svw____ _gdp ___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001052351
SUFFIX
RECON
DATE BOARDED	20010410
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.000
2.
3.
4.
5.
6.