MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 23 April 2002
         DOCKET NUMBER: AR2001065273


         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:

Ms. Karol A. Kennedy		Chairperson
Mr. Mark D. Manning		Member
Mr. Thomas Lanyi		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 opinions, if any).

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APPLICANT REQUESTS: In effect, that his Undesirable Discharge (UD) discharge be upgraded to honorable. He states he needs the upgrade to get disabled veterans care and benefits. He states that he accepted the UD at a court-martial under the understanding that in 90 days it would be upgraded.

The applicant indicates that the date of discovery of the alleged error or injustice was 19 October 2001. He states he was told that his UD would be converted to an honorable discharge after 90 days and since it was not, it is in the interest of justice for the Board to consider this application.

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 that :

The applicant entered active duty on 26 June 1974 with a 10th grade education. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 94B (Food Service Specialist).

The record shows that, following his assault on a noncommissioned officer (NCO), the applicant’s company commander went to the applicant’s off base residence to read him his rights. While there the applicant voluntarily handed over some suspected heroin, a coffee can containing suspected marijuana, and a glass smoking device.

These items were taken to the Criminal Investigation Division who in turn sent them to a drug testing facility. The substances tested positive for heroin and marijuana.

There is a reference to the applicant being released from a halfway house on 31 October 1975 but no information on why or when he was referred to that facility.

On 3 November 1975, court-martial charges were preferred for physical assault on an NCO, possession of a controlled substance (heroin), and failure to go to his appointed place of duty. The failure to go charge was dropped at an undetermined point and the applicant was not charged with marijuana use or possession.

On 20 January 1976, the applicant submitted a statement to the Commanding General, Fort Carson, Colorado, wherein he requested that he be discharged. He stated that he no longer wished to be in the Army, could not stand taking all the orders, and that he was having family problems by being in the service.

Also on 20 January 1976, a member of the Judge Advocate General’s Corps (JAG) counseled the applicant about his pending court-martial and the option of submitting a request for discharge in lieu of trial by court-martial. In this counseling statement, signed by the JAG officer and the applicant, specific statements warn the applicant of the consequences of an under other than honorable conditions (UOTHC) discharge on his future and that rumors that an UOTHC can be easily changed are false. It cited the specific statistics of the upgrade rate with a warning that if the applicant received an UOTHC discharge he would most likely have to live with it the rest of his life.

After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10.

The applicant was afforded physical and mental status examinations (MSE). The MSE, conducted 23 January 1976, found the applicant's behavior normal. He was found to be able to tell right from wrong and to adhere to the right. He met the medical retention standards of Army Regulation 40-501 and was qualified to participate in any administrative actions.

The discharge authority accepted the applicant’s request and directed that he be separated on 29 January 1976 with an Undesirable Discharge and barred from the Fort Carson Military Reservation.

The applicant’s Report of Separation from Active Duty shows that he was discharged on 29 January 1976 with a characterization of service as under other than honorable conditions. He had served 1 year, 7 months, and 4 days with no lost time and no significant awards or decorations.

There is no evidence that the applicant applied to the Army Discharge Review Board within its statutory 15-year time limit.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.


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 29 January 1976, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 January 1979.

The application is dated 19 October 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

__KAK___ __MDM_ ___TL___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001065273
SUFFIX
RECON
DATE BOARDED	20020423
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	142.01
2.	144.9223
3.
4.
5.
6.