MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 18 APRIL 2002
         DOCKET NUMBER: AR2002067650


         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. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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 a general discharge. He states that he made a "bad mistake" and "left to take care [of his] sick mother.” He states that his military record was "good" and that he wishes he could "take back time." 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 17 May 1971, 10 days shy of his 18^th birthday.

Shortly after completing basic and advanced individual training, the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for being AWOL (absent without leave) between 16 November 1971 and
1 December 1971. In February 1972 he was assigned to a cavalry unit in Germany as a cook.

In May 1972 the applicant was convicted by a special court-martial of kicking another soldier in head and body with his foot. His sentence included reduction to E-2, restriction, and extra duty.

By August 1972 the applicant had returned to his former pay grade of E-3.

In the spring of 1973 the applicant was authorized a period of leave in the United States. His commander informed him, via a letter dated 3 April 1973, of the course of action the applicant should follow once his 10 day leave extension expired. The letter informed the applicant that he was required to return to his duty station in Germany no later than 12 April 1973 and that if he was unable to do so he should report to the nearest military installation or contact the Red Cross for assistance.

The applicant did not return to his duty as instructed and on 17 April 1973 he was reported AWOL. He was dropped from the roles of the Army on 16 May 1973.

A 22 April 1973 letter from the applicant's commander to the local provost marshall, in Germany, indicates that the applicant was granted leave and a subsequent extension because he had indicated to his section leader that his mother had become sick and he (the applicant) felt that as the oldest child he was obligated to attempt to resolve the family's financial problems. He noted that the applicant had also indicated that his father had been hospitalized "at an early date in the old soldiers (sic) home." The commander noted that letters had been sent to the applicant and his next of kin asking about his whereabouts but no responses were ever received.

The applicant returned to military control on 25 June 1973. It is unclear from documents contained in his OMPF (Official Military Personnel File) if the applicant turned himself in, or if authorities apprehended him.

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 undesirable 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 on his own behalf.

His request was approved, and on 24 July 1973 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. He had 1 year, 11 months, and 28 days of creditable service and more than 60 days of lost time.

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.

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.

There is no evidence, and the applicant has not submitted any, that indicates that he separation was in error or unjust. He elected to request an administrative separation rather than face the consequence of a court-martial. The applicant has 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 on 24 July 1973, the date applicant was discharged and authenticated his separation document. The time for the applicant to file a request for correction of any error or injustice expired on
24 July 1976.

The application is dated 11 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

__FNE __ __BJE __ __REB __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002067650
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020418
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.