MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 02 APRIL 2002
         DOCKET NUMBER: AR2001066163


         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Curtis L. Greenway		Member
Ms. 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 under other than honorable conditions discharge be upgraded to honorable. He states that he requested leave to attend his grandfather's funeral but his request was denied and he departed AWOL (absent without leave). He states that after his AWOL he "was treated as an outcast" and allowed to be discharged but "was given an OTH [other than honorable]." He submits no evidence in support of his request.

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 entered active duty on 22 January 1980, after several months in the DEP (Delayed Entry/Enlistment Program). His records indicate that his parents were deceased at the time of his enlistment and his grandmother had custody. The applicant was 18 years old at the time of his enlistment.

He successfully completed training and was assigned to Germany in August 1980. While in Germany he was punished twice under Article 15 of the UCMJ (Uniform Code of Military Justice). His offenses included sleeping on duty, failing to go to his appointed place of duty, and disobeying an order.

He departed on ordinary leave on 20 April 1981. When he failed to return to his unit in Germany, on 26 May 1981, he was reported as AWOL. He was subsequently dropped from the rolls of the Army. The applicant surrendered to military authorities at Fort Ord on 3 August 1981.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the under other than honorable conditions discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both federal and state law. He did not submit any statements in his own behalf.

A mental health evaluation, conducted on 21 September 1981, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal. It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

In his endorsement, the applicant's unit commander noted that the applicant "went AWOL because he was not financially able to return to Germany from ordinary leave." The commander also indicated that the applicant "desires a discharge because he no longer wants to remain in service" and that he "stated if returned to duty he would again go AWOL."

The separation authority approved the applicant's request for an administrative separation and directed that he be discharged "under other than honorable conditions." The applicant was placed in an excess leave status on
21 September 1981 and on 8 January 1982 was separated under the provisions of Army Regulation 635-200, chapter 10.

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.

Subsequent to his separation, the applicant submitted a request to the Army Discharge Review Board to have his discharge upgraded. In that application, the applicant indicated that when his uncle died he was denied leave to attend the funeral. He noted that when his grandmother was subsequently hospitalized for a heart attack he again requested leave and was denied leave by his commander. He stated that he was "desperate to be with [his] grandmother…took a three day pass and went AWOL to California to be by her side."

The Army Discharge Review Board unanimously denied the applicant's petition to upgrade his discharge in September 1987.

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.
There is no evidence, nor has the applicant provided any, that his discharge was in error or unjust. He has also submitted no evidence which would serve as a basis to upgrade his discharge as a matter of equity.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered in September 1987, when the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired in September 1990.

The application is dated 7 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. 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 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

___WTM_ ___CLG_ __RKS__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001066163
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020402
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	142.00
2.
3.
4.
5.
6.