MEMORANDUM OF CONSIDERATION



         IN THE CASE OF:



         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001054214

         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		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 essence, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). He states that, “I put my time in Germany.” The applicant does not provide a date of the discovery of the alleged error of injustice but submitted his application to the Board on 6 December 2000. He further states, that “his discharge should be upgraded to honorable for justice.” In support of his application, he submits three personal letters of reference, a copy of his DD Form 215 dated 25 June 1985, a copy of his discharge certificate dated 14 December 1981, a copy of DA Form 31 (Request and Authority for Leave) dated 9 February
1981, and a copy of DD Form 1351-2 (Travel Voucher or Subvoucher) dated
1 September 1981.

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 in the Regular Army for a period of 4 years on 21 February 1979. He completed both basic combat training and advanced individual training at Fort Leonard Wood, Missouri, on 6 July 1979. He was awarded military occupational specialty (MOS) 63B10 (Light Wheel Vehicle/Power Generation Mechanic). He was then transferred and arrived in Germany for duty in his MOS on 27 July 1979.

On 1 February 1981, he was promoted to the rank of specialist, pay grade E-4.

On 25 July 1981, he returned to the United States and was assigned to Fort Stewart, Georgia, for duty.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully and unlawfully altering his DD Form 698, Individual Sick Slip on 15 September 1981 and for being disrespectful in language towards a superior noncommissioned officer (NCO) on 13 September 1981. His punishment included reduction to pay grade E-2, forfeiture of $250.00 per month for 2 months and extra duty for 45 days, which was suspended for 15 days.

The applicant then received two DA Forms 2496 (Disposition Form) as notification of six dishonored check(s) on 1 October 1981, for the total amount due of $260.00.

On 5 October 1981, he received a second DA Form 2496 notifying him of (4) additional dishonored check(s), for the total amount due of $165.00.

On 18 November 1981, charges were preferred against the applicant for uttering worthless checks for the total amount due of $200.00 dollars. He was also charged with willfully disobeying a lawful order by an NCO and for failing to go to his appointed place of duty.
On 17 November 1981, 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 that he was guilty as charged or of a lesser included offense for which he could receive a punitive discharge. He indicated that he did not desire further rehabilitation and that he had no desire to perform military service. He acknowledged that he understood the nature and consequences of the UOTHC discharge that he might receive, including that he might lose some or all veteran benefits. He declined to submit a statement in his own behalf.

On 18 November 1981, his chain of command recommended approval of his request for discharge in lieu of trial by court-martial.

At a mental status evaluation, on 20 November 1981, the applicant's behavior was normal. He was fully alert and oriented and displayed a depressed mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and participate in separation proceedings. Administrative action, including a chapter
10 discharge, was deemed appropriate. On 23 November 1981, a medical examination found him to be qualified for separation with a physical profile of 3.1.1.1.1.1.

On 4 December 1981, the separation authority approved the applicant’s request and directed an UOTHC discharge.

On 7 December 1981, the applicant was listed as being absent without leave (AWOL). On 9 December 1981, he surrendered to the military authorities at Fort Stewart, Georgia. There is no indication in the record that further disciplinary action was taken.

On 14 December 1981, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial with a UOTHC discharge. He had 2 years, 9 months and 21 days of creditable service,
30 days of excess leave and 2 days of lost time.

The Manual for Courts-Martial, Table of Maximum Punishments, as then in effect, and the edition currently in effect, provides that a punitive discharge is authorized for willful disobedience and writing worthless checks.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 December 1981. The time for the applicant to file a request for correction of any error or injustice expired on 14 December 1983.

The application is dated 6 December 2000 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 recommended 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 applicant within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__FNE___ __MHM_ ___BJE__ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2001054214
SUFFIX
RECON
DATE BOARDED	20011018
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981-12-14
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Chapter 10
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.
2.
3.
4.
5.
6.