MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 11 OCTOBER 2001
         DOCKET NUMBER: AR2001060324


         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Mark D. Manning		Member
Mr. Jose A. Martinez		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 under other honorable conditions discharge be upgraded to a general discharge. The applicant states that “within a period of less than six months” he was sexually assaulted twice. He states he was first assaulted while in El Paso and then while at the Retraining Brigade at Fort Riley, Kansas. He notes that he never told anyone about these assaults, but contends that as a result his “mental attitude and stability were gone.” The applicant states that he was a good soldier until these incidents but completely withdrew “from as much human contact as [he] could” after the assaults. He states he was homeless for 6 years following his separation and that he has “self medicated with alcohol for 27 years to try to block the nightmares and flash backs.” He states he needs his discharge upgraded in order to receive assistance from the VA. Other than his self-authored statement, he submits no evidence in support of his request.

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 initially entered active duty on 30 September 1971. He was trained as an infantryman and ultimately assigned to Fort Bragg, North Carolina. In June 1972 he was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for not being in the proper uniform for duty. In August 1972 he was punished under Article 15 of the UCMJ for 4 days of AWOL (absent without leave) and failing to go to his appointed place of duty. In December 1972, when he was reassigned to duties as a radio telephone operator, his commander indicated his “efficiency” was “fair.”

On 5 October 1973, at the completion of his enlistment contract, the applicant was released from active duty, in pay grade E-3, with an honorable characterization of service.

In December 1973 the applicant was apprehended and charged with DWI (driving while intoxicated). He was fined $142.00.

On 5 March 1975 the applicant reenlisted in the Regular Army and returned to active duty. He was trained as a chaparral crewman and assigned to Fort Bliss, Texas in April 1975. He was promoted to pay grade E-4 in November 1975.

In March 1976 he was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty. His punishment included reduction to pay grade E-3. A performance evaluation report, rendered in March 1976, noted that the applicant’s “appearance, military bearing, and pride in himself needs much improvement.”

On 2 April 1976 the applicant departed AWOL and was subsequently dropped from the rolls of the Army. He returned to military control on 4 May 1976. While court-martial charges were pending the applicant broke restriction. He was ultimately convicted by a special court-martial for his AWOL and breaking restriction. His punishment included 45 days of confinement. He was initially confined at Fort Bliss but in June 1976 he was transferred to Retraining Brigade at Fort Riley.

On 9 July 1976, shortly after the applicant’s arrival at Fort Riley, his team commander counseled the applicant, noting he had a drinking problem and was in a “financial bind with many letters of indebtedness coming in wanting him to pay off his bills.” His commander indicated that the applicant’s performance was “totally unsatisfactory” during the first week of training and that he had received 16 RO’s (records of observation) to date. The applicant indicated to the commander during that session that he wanted “out of the Army because he can’t readjust and it would benefit the good of the Army….”

On 12 July 1976 the applicant acknowledged that he was being recommended for an administrative discharge because of misconduct. The recommendation was approved and on 26 July 1976 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1). He was issued an under other than honorable conditions discharge.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was 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.

The Board has noted the contentions of the applicant. However, they are not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicant law and regulations and the applicant’s service was appropriately characterized.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 26 July 1976, the date the applicant was discharged and authenticated his separation report. The time for the applicant to file a request for correction of any error or injustice expired on 26 July 1979.

The application is dated 8 July 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

__JL____ __MDM__ __JAM __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001060324
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011011
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.	142.00
2.
3.
4.
5.
6.