MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001061602


         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. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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: In effect, that his general discharge under honorable conditions be upgraded to fully honorable. He states that after a certain amount of time his discharge should have been automatically upgraded. He states that when he joined the District of Columbia (DC) Army National Guard (ARNG) his discharge had to be upgraded to enable him to enlist. He also states he was discharged because of medical reasons. He also contends that his active duty records should be corrected because his discharge from the DC ARNG was honorable.

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 available military records show:

On 8 August 1977, he was enlisted in the Army for 3 years. He completed his required training and was awarded military occupational specialty 76Y (Unit Supply Specialist). He served in Germany from 25 November 1977 until
28 August 1978, upon his transfer for separation from active duty.

On 7 April, 14 April and 20 April 1978 he was counseled for misconduct.

On 17 April 1978, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for his failure to go to his appointed place of duty on three occasions, dereliction of duty and disobeying a lawful order. His punishment included a reduction (suspended) and restriction.

On 20 April 1978, his battery commander notified the applicant that he was initiating action to discharge him under Army Regulation 635-200, paragraph
5-37, Expeditious Discharge Program (EDP), with a general discharge, because of his inability to adapt socially or emotionally. He was advised of his rights and received military legal counsel. The applicant acknowledged the commander’s intent and requested a rehabilitative transfer. The applicant’s request was approved and he received a rehabilitative transfer from Headquarters and Headquarters Battery to B Battery, 1^st Battalion, 81^st Field Artillery effective
24 May 1978.

He received counseling on numerous occasions for misconduct from 16 June through 31 July 1978.

On 7 August 1978, his new battery commander notified the applicant that he was initiating action to discharge him under Army Regulation 635-200, paragraph 5-37, EDP, with a general discharge, because of his inability to adapt socially or emotionally. He was advised of his rights. The applicant acknowledged the commander’s intent, voluntarily consented to be discharged, declined consultation with legal counsel, and elected not to make a statement on his own behalf.

A physical examination and a mental status evaluation cleared the applicant for separation. His physical profile was shown as 1/1/1/1/1/1, and his physical category was shown as A.

On 15 August 1978, the appropriate separation authority approved the request and directed a General Discharge Certificate (GDC) be issued.

On 30 August 1978, he was discharged with a GDC, prior to the expiration of his term of service, under the above-cited regulation. His separation document indicates his pay grade as E-2 and that he had 1 year and 23 days of creditable service.

On 29 August 1985, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge to fully honorable. He was not in the Reserve of the Army at this time.

He was provided an Honorable Discharge Certificate, National Guard Form 55, dated 5 December 1988, in pay grade E-2, from the DC ARNG. (There is no record of his enlistment or service in the DC ARNG.)

The EDP provided that individuals who had completed at least 6 months, but not more than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be involuntarily separated. Such individuals were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be offered an opportunity to consult with legal counsel.

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 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 29 August 1985, upon the denial of his petition for upgrade of his discharge by the ADRB. The time for the applicant to file a request for correction of any error or injustice expired on 29 August 1988.

The application is dated 14 August 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 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

_aao____ _wtm____ _clg____ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001061602
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144
2.
3.
4.
5.
6.