MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001064076


         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
Mrs. Nancy Amos		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 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 than honorable conditions discharge be upgraded to honorable. He states that upon his release from active duty at Fort Jackson, SC, he was given discharge paperwork to take back to his unit in California but he forgot the paperwork on the plane. He reported them missing and never heard from anyone again. After that he went back to the military and could not prove that he was in the service and was asked to reenlist so he had to go through all his training again. He went to Fort Dix, NJ, and Fort Lee, VA for training. He would like this paperwork sent to his mother so he can get all his military paperwork in order. He provides no supporting evidence.

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, obtained from the archived records of the California National Guard, show:

He initially enlisted in the Army National Guard (ARNG) on 31 August 1976. He was ordered to active duty for training on 10 October 1976. On 8 November 1976, he was recommended for separation under the trainee discharge program (TDP) for having a poor attitude and failing to adjust. It was also noted he had complaints of numerous physical ailments which prevented him from training and also complaints of serious family problems. He was pending nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and it was felt he would become a serious disciplinary problem if he were not discharged. He was released from active duty and discharged as a Reserve of the Army and returned to the ARNG on 18 November 1976. He was discharged from the ARNG on 18 November 1976 after completing 2 months and 18 days of creditable service for pay.

On 8 August 1977, the applicant enlisted in the California ARNG (CAARNG) apparently without receiving a waiver for his previous discharge. He was ordered to active duty for training on 2 October 1977. On 17 February 1978, he accepted NJP under Article 15, UCMJ for disobeying a lawful order to go to his room and stay there. On 23 February 1978, he accepted NJP under Article 15, UCMJ for damaging, through neglect, the felt surface of two pool tables. On 15 March 1978, he accepted NJP under Article 15, UCMJ for wrongfully using reproachful words towards a Specialist Five. On 1 May 1978, he was released from active duty upon the completion of his required active service.

The applicant was notified by letter dated 25 January 1982 that he had accrued 30 unexcused absences. On 16 March 1982, the unit recommended the applicant be involuntarily transferred to the Inactive National Guard (ING) because he accrued nine or more unexcused absences during a 12-month period. Around June 1982, the applicant’s unit discovered the applicant was serving a four-year prison sentence, confirmed when the applicant notified his commander by letter dated 25 June 1982 of his conviction apparently for assault.

On 12 July 1982, action was initiated to separate the applicant by reason of conviction by civil court (court documents and reason for conviction unknown). An under other than honorable conditions characterization of service was initially sought but apparently it was decided there was insufficient evidence to justify this type of characterization. On 17 August 1982, he was transferred to the ING. On 21 September 1982, he was reassigned back into the active ARNG. He was discharged from the ARNG and as a Reserve of the Army on 30 September 1982 with a general under honorable conditions discharge for civil conviction after completing 5 years, 1 month, and 23 days of creditable service for pay (not counting his prior service of 2 months and 18 days of creditable service).

National Guard Regulation 600-200 establishes policies for the management of ARNG enlisted soldiers in several areas, including discharge. The regulation in effect at the time, dated 1 September 1978, stated that conviction by civil court was (as it still is) a reason for discharge and referred to Army Regulation 135-178, chapter 7 for further guidance.

Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the U. S. Army Reserve. Chapter 7 states that discharge action may be initiated against soldiers when initially convicted by civil authorities or action is taken that is tantamount to a finding of guilty and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities includes confinement for 6 months or more. When a soldier is under military control, the unit commander will take action as specified in the Administrative Board Procedure section. The soldier will be advised of his right to present his case under the Administrative Board Procedure if he or she has 6 or more years of total Regular and Reserve military service or if being considered for discharge under other than honorable conditions.

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 30 September 1982, the date applicant was discharged with a general discharge under honorable conditions, not a discharge under other than honorable conditions. The time for the applicant to file a request for correction of any error or injustice expired on 30 September 1985.

The application is dated 16 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.

A copy of the applicant’s Reports of Separation from Active Duty, DD Forms 214, for the periods ending 18 November 1976 and 1 May 1978, and his Reports of Separation and Record of Service, NGB Forms 22, for the periods ending 18 November 1976 and 30 September 1982, will be provided to the applicant.

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

__rvo___ __cla___ __jtm___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001064076
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19820930
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON	A61.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.