MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
                                   
        

         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2002068416


         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. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		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).

---

APPLICANT REQUESTS: That her discharge be upgraded to an "honorable discharge with honors", that she receive "at least Capt[ains] pay" and a VA (Department of Veterans Affairs) pension from the time she "was ordered to go AWOL (absent without leave)." Elsewhere in her statement she requests that her records be wiped clean, given the rank of E-4 or E-5, and either a "medical pension or a retirement pension" with back pay.

The applicant does not indicate the date of discovery of the alleged error or injustice. She states that it would be in the interest of justice for the Board to consider this application because she "was sent undercover and they have been committing and letting me hurt myself."

She relates incidents that occurred during her period of service to justify her actions. She justifies her own admission of disrespectful language and disobeying orders from a commissioned officer as her right under the Constitution. She alleges that she was only defending herself in an incident at the enlisted club.

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 28 February 1969. She completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 91A (Medical Corpsman).

The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 6 October 1969 for being absent from her appointed place of duty.

The record indicates that additional disciplinary actions were pending when, on 2 January 1970, she went AWOL. The applicant returned to military control on 4 February 1970.

On 16 February 1970, court-martial charges were preferred for 3 specifications of being absent from her appointed place of duty, 33 days of AWOL, unlawfully striking a private and being disorderly in public. She was afforded a physical examination and a mental status evaluation (MSE). The MSE conducted on 2 March 1970, found the applicant to have an emotionally unstable personality. She was found to be able to distinguish right from wrong and to adhere to the right. She met the medical retention standards of Army Regulation 40-501 and was qualified to participate in any administrative action deemed appropriate.
On 9 March 1970, after consultation with a military attorney, the applicant submitted an unqualified request to be discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. She submitted a personal statement citing family and personal health problems as the reason for her misconduct.

The discharge authority accepted the discharge request and directed that she be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

The applicant was discharged on 3 April 1970 in accordance with Army Regulation 635-200, chapter 10 under other than honorable conditions. She had 1 year and 3 days of creditable service with 33 days lost.

There is no indication that the applicant ever applied to the Army Discharge Review Board for review of the characterization of or reason for her discharge.

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.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for AWOL in excess of 30 days.

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 3 April 1970, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 3 April 1973.

The application is dated 10 January 2002 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 her case had been considered and it had been concluded that there was no basis to recommend a correction of her 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 her application within the three-year time limit.


BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__MKP__ __HBO__ ___CJP__ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2001064716
SUFFIX
RECON
DATE BOARDED	20020829
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.