MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 4 June 2002
         DOCKET NUMBER: AR2001065949


         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Regan K. Smith		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 Article 15 from Fort Riley, KS be removed from his records and that his discharge be upgraded. He states that after 18 years his status should be determined to be paid in full. Before he was sentenced at his court-martial, he was asked if he had anything to say on record and he said “no.” He said this because he was told by some guys in the unit that the court-martial was only a preliminary thing they had to do before they discharged him. Then he was asked if he wanted to talk off the record. He did, and he mentioned some of the family problems he was having and some of his medical problems. He was told that if he, had mentioned those problems on the record he would have been given a medical or hardship discharge hearing. 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 show:

He enlisted in the Regular Army on 4 May 1981. He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

On 19 April 1982, the applicant accepted nonjudicial punishment at Camp Castle, Korea for absenting himself from his place of duty. A Military Personnel Office/Finance Office Verification of MPRJ and PFR, DA Form 4188, indicates he received a second Article 15 on 22 May 1982 and a third on 1 February 1983 for unknown offenses but they are not available.

The applicant was assigned to Fort Riley, KS on or about 1 December 1982. On 23 February 1983, he was convicted by a summary court-martial of damaging Government property on or about 5 February 1983; possessing a knife on or about 5 February 1983; being disorderly on or about 5 February 1983; being drunk and disorderly on or about 19 February 1983; and being drunk and disorderly on or about 20 February 1983. He was sentenced to forfeit $382.00 pay per month and to be confined at hard labor for 30 days. On 17 March 1983, the charge of possessing a knife was set aside.

A Report for Suspension of Favorable Personnel Actions, DA Form 268, dated 19 April 1983 indicates the applicant was pending discharge under the provisions of Army Regulation 635-200, chapter 14. The discharge packet is not available.

The applicant’s service medical records are not available. A Periodic Medical Examination (Statement of Exemption), DA Form 3081-R dated 29 April 1983 indicates he underwent a separation medical examination on 28 April 1983 and to the best of his knowledge there had been no significant change in his medical condition.

On 29 April 1983, the applicant was discharged, with a discharge under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14 for misconduct – pattern of misconduct. He had completed 1 year, 11 months, and 4 days of creditable active service and had 22 days of lost time (confinement).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.

Army Regulation 635-200, chapter 6 states, in pertinent part, that a soldier may be discharged or released because of genuine dependence or hardship. Hardship exists when in circumstances not involving death or disability of a member of the soldier’s immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Certain application criteria must be met and supporting evidence must be provided.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. If a case comes within these limitations, the commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation. The general court-martial convening authority (GCMCA) may refer a case file to the Physical Evaluation Board if the GCMCA finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or finds that other circumstances warrant disability processing instead of alternate administrative separation.

There is no evidence that the applicant applied to the Army Discharge Review Board for an 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 29 April 1983, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 April 1986.

The application is dated 1 November 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.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

JLP AAO RKS CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001065949
SUFFIX
RECON
DATE BOARDED	2002/06/04
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/04/29
DISCHARGE AUTHORITY	AR 635-200, ch 14
DISCHARGE REASON	A60.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	126.04
3.
4.
5.
6.