MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001063016

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         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 be upgraded. The applicant does not indicate a date of discovery of the alleged error or injustice; however, he states that his failure to file in a timely manner should be excused because he thought he had 15 years in which to file as he had with the Army Discharge Review Board (ADRB). He states that he believes that, “My character of service does not match my discharge.” In support of his claim, he indicated on his application that there is an attachment; however, no attachment was enclosed.

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:

The applicant entered active duty on a four-year enlistment on 10 November 1988. He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 95B10 (military police).

The applicant’s record contains the following General Counseling Statements for:

1. a weight problem, financial indebtedness, poor attitude, poor performance on the Army physical fitness test (APFT) and the appearance of his uniform, 26 July 1989;
2. failure of the APFT, 14 November 1989;
3. withdrawal of his on base alcohol purchasing privileges following his involvement in an alcohol related incident, 4 January 1990;
4. placement on the weight control program for being 10 pounds over his maximum weight, 8 January 1990;
5. failure to meet minimum APFT standards, 23 January 1990;
6. failure to meet minimum APFT standards, 7 June 1990;
7. a lack of professional attitude, personal appearance, poor job performance and a letter given to his platoon sergeant stating that he refused to participate in the Personnel Reliability Program (PRP) and that he wished to get out of the service, 10 June 1990.

There is an undated statement from the applicant attached to the 26 July 1989 general counseling statement wherein the applicant states that he is sorry that he cannot adapt to the Army, that he has become an alcoholic, that he cannot stand the Army and that he wants out.

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Following the applicant’s second APFT failure, he underwent a physical examination on 27 February 1990. No limiting or disqualifying abnormalities were reported and it was determined he was qualified for “all duty, chapter.”

The applicant’s company commander submitted a request for a psychiatric evaluation on 29 March 1990.

The applicant was afforded a mental status evaluation on 30 March 1990, which reported no findings of “acute psychiatric disturbance” and cleared the applicant to participate in any administrative proceeding.

On 11 June 1990, his company commander initiated a request for permanent disqualification from the PRP based on the applicant’s written statement that he did not believe in nuclear weapons or the Army, reported personal problems that were interfering with his duty performance and episodic alcohol abuse. The applicant declined to offer a statement on his own behalf. It appears that he was reassigned out of his MOS at this time.

The company commander initiated a request for discharge under the provisions of Army Regulation 635-200, chapter 13, with notification to the applicant on 21 June 1990.

The applicant consulted with military counsel and waived his rights to rebut the recommendation and/or to submit a statement on his own behalf on 22 June 1990.

The discharge authority accepted the recommendation for discharge and directed that the applicant be discharged with a “General Discharge.” The applicant was discharged on 19 July 1990, under honorable conditions, for unsatisfactory performance.

On 2 October 1995, by a unanimous decision the Army Discharge Review Board denied the applicant's request for upgrade of his discharge or to change his reason for discharge.

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, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the

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basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Additionally, chapter 13 states, in part “initiation of separation proceedings is required for soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).” Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

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 2 October 1995, the date of the ADRB decision. The time for the applicant to file a request for correction of any error or injustice expired on 2 October 1998.

The application is dated 15 September 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

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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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __CLA___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063016
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	A93.07
3.
4.
5.
6.