MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2002066535


         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. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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) be upgraded to a General Discharge under honorable conditions.

The applicant does not indicate the date of discovery of the alleged error or injustice. He states that he was young, immature, and inexperienced at the time he committed the offences that led to his being "railroaded" into "accepting" the UD. He states that he believes that an injustice was done and that it would be in the interest of justice for the Board to consider this application.

The applicant submits a two page personal statement without supporting documentation. In this statement he avers that he had been forced to violate his light duty status, that his platoon sergeant assaulted him, and that he was court-martialed twice for separate periods of absence without leave (AWOL). He states that he was told that he would be going to Ft. Leavenworth penitentiary unless he accepted the under other than honorable conditions discharge. He admits to the offences and regrets the inappropriate actions of a young and inexperienced kid but he avers that, had his rights not been violated, he would not have committed the offences that led to his discharge.

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 13 October 1961, at age 17, and never completed basic combat training.

His record shows that the applicant plead and was found guilty at a Special Court-Martial of being AWOL for the period of 26 November - 12 December 1961. The punishment included confinement at hard labor for 4 months and forfeiture of 2/3^rds pay ($52) per month for 4 months. The confinement portion of his sentence had originally been suspended, however, the suspension was vacated on 31 January 1962, following a second period of AWOL.

The applicant was reported AWOL for the period of 13 - 14 January 1962. He was apprehended by civilian authorities and held in civilian confinement for the period of 14 - 16 January 1962. The applicant remained in military confinement from 31 January through 29 April 1962.

While in confinement the applicant received a verbal reprimand for defacing a "white patch" and received 2 hours of extra duty for 14 days for violation of Article 91, insubordinate conduct toward a noncommissioned officer and damaging government property.

On 26 February 1962, the applicant was notified that his command was recommending that he be discharged under the provision of Army Regulation 635-208 for unfitness due to misconduct. He was afforded physical and mental status examinations (MSE) in March 1962. The MSE conducted found the applicant to possess sufficient mental capacity to know the difference between right and wrong and to adhere to the right. He was considered to be mentally responsible for his acts and not amenable to rehabilitation efforts. He met the medical retention standards of Army Regulation 40-501 and was qualified for separation.

On 16 March 1962, the applicant was advised of his rights and he waived his right to offer a statement on his own behalf, to appear before a board of officers or to have his case reviewed by a board of officers, and to have military counsel representation.

The discharge authority approved the discharge recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-208, paragraph 3a for unfitness. It was directed that the applicant be furnished an Undesirable Discharge Certificate.

The applicant was discharged with an under other than honorable conditions characterization of service on 30 April 1962. He was shown to have had 2 months and 28 days of creditable service with 110 days of lost time due to AWOL and confinement.

There is no indication that the applicant applied to the Army Discharge Review Board for consideration of upgrading his discharge within the 15-year statue of limitations.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable or disposition under other regulations was inappropriate. Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. An undesirable discharge was normally considered appropriate.

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 30 April 1962, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 30 April 1965.

The application is dated 3 December 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

_HBO ___ _RWA___ __FNE__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002066535
SUFFIX
RECON
DATE BOARDED	20020611
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	144.9301
2.
3.
4.
5.
6.