MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 2 August 2001
         DOCKET NUMBER: AR2001057247


         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:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John P. Infante		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 discharge under honorable conditions be upgraded to an honorable discharge. He states that he was railroaded and that there should be an investigation as to why he was not given legal representation. He was discharged with less than 2 months until the expiration of his term of service. He further indicates that he wants to finish his education and get a doctorate degree.

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:

Records show the applicant completed 11 years of high school.

On 10 February 1976, the applicant enlisted in the Army for 4 years and specific training. He completed his required training and was awarded military occupational specialty 63B (Power Generator and Wheeled Vehicle Mechanic). He was advanced to pay grade E-4.

During the period 4 July 1976 to 6 July 1977, he served in a unit in the Republic of Korea.

On 16 June 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform code of Military Justice (UCMJ) for engaging in black-market activities on 23 December 1976. His punishment was a forfeiture of $200.

On 5 December 1977, he accepted NJP for being absent without leave (AWOL) for the period 27 to 28 October 1977. His punishment was a forfeiture of $80 with $40 suspended until 5 February 1978. On 21 December 1977, the suspended portion of punishment was vacated.

On 3 March 1978, he accepted NJP for his failure to go to his appointed place of duty on 10 February 1978. His punishment included a reduction to pay grade E-3, which was suspended until 1 June 1978 and extra duty for 7 days. On 17 March 1978, the suspended portion of punishment was vacated.

On 24 March 1978, he accepted NJP for making a false official statement on 2 February 1978. His punishment included a reduction to pay grade E-1, which was suspended until 23 April 1978 and extra duty for 15 days.

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On 11 May 1978, he accepted NJP for assault with a dangerous weapon. His punishment included a reduction to pay grade E-1, a forfeiture of $198 pay per month for 2 months, which $198 per month for 1 month was suspended until 8 August 1978 and extra duty for 7 days.

On 11 October 1979, he accepted NJP for being disrespectful in language to a superior noncommissioned officer and to a superior commissioned officer on 28 September 1979. His punishment included a reduction to pay grade E-1, a forfeiture of $209 pay per month for 2 months and confinement at a correctional custody facility for 30 days.

On 11 October 1979, the unit commander advised the applicant of his contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability-apathy, defective attitude or inability to expend effort constructively. He was advised of his rights. The applicant acknowledged receipt of the notification.

On 8 November 1979, a physical examination cleared the applicant for discharge.

On 30 November 1979, the applicant was advised by his legal counsel of the basis for the action against him. He waived consideration of his case and personal appearance before a board of officers, elected not to make a statement in his own behalf and waived legal representation.

In an undated memorandum, the unit commander requested the applicant be discharged under Army Regulation 635-200, paragraph 13-4c, for unsuitability.

On 3 December 1979, the appropriate separation authority approved the request to discharge the applicant and directed he be issued a General Discharge Certificate.

On 12 December 1979, he was discharged under honorable conditions under the above-cited regulation. His separation document indicates he had 3 years, 10 months and 1 day of creditable service and 1 day of lost time.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality. The regulation requires that separation action will taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a
satisfactory soldier. Service of soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

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.

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 12 December 1979, the date he was discharged from active service. The time for the applicant to file a request for correction of any error or injustice expired on 12 December 1982.

The application is dated 6 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 the 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

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determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit the application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

_rjw____ __bje___ __jpi___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001057247
SUFFIX
RECON
DATE BOARDED	20010802
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.