MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 31 JULY 2001
         DOCKET NUMBER: AR2001055025


         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. Arthur A. Omartian		Member
Mr. John T. Meixell		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 records be corrected by upgrading his discharge to honorable and by adding his duty stations and length of service to his DD Form 214 (Armed Forces of the United States report of Transfer or Discharge). The applicant states that his other than honorable discharge was a result of racism and a lack of communication at his command. In support of his request the applicant submits copies of his discharge certificates.

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 17 January 1966 he reenlisted in the Regular Army for a period of 6 years, in the pay grade of E-4.

On 15 August 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being in an “off limits” area while stationed in the Republic of Panama. His punishment was reduction to pay grade E-3.

Between January 1969 and October 1971 he received 3 additional NJP’s under the provisions of Article 15, UCMJ for being absent without leave (AWOL), patronizing an off limits establishment, and for failure to go to his appointed place of duty. His punishments were forfeitures, restriction and extra duty.

In June 1970 he was convicted by a special court-martial of being AWOL from
27 March to 18 May 1970. He was sentenced to confinement at hard labor for 2 months (suspended for 5 months), forfeiture and reduction to pay grade E-1.

The applicant was AWOL from 1 November 1971 to 8 March 1972 when he was apprehended by civil authorities and returned to military control.

The facts and circumstances pertaining to the applicant’s discharge are not in the available records. However, on 5 May 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and was issued an under other than honorable conditions discharge, in lieu of trial by court-martial. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 3 years, 11 months and 12 days of creditable service and 129 days of lost time.


On 26 October 1973, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

On 23 February 1976, the applicant was awarded a clemency discharge, pursuant to Presidential Proclamation 4313 of 16 September 1974.

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. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. At the time a discharge under other than honorable conditions was normally considered appropriate.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214, and does not authorize the inclusion of a soldier's duty stations.

There is no evidence in the applicant’s available records nor did he provide documentation to substantiate his claim of racism or a lack of communication within his command. The character of his discharge is commensurate with his
record of service.

The applicant's DD Form 214 accurately reflects his length of service; and his duty stations are not authorized to be listed on his DD Form 214.

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 26 October 1973, the date the ADRB denied his request to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1976, 3 years after the ADRB denied his request for an upgrade of his discharge.

The application is dated 26 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. 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 _ __AAO __ __JTM__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001055025
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010731
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.