MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002069088


         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that he was young and that he was having problems in school and his personal life when he joined the Army. He also states that his parents' divorce caused a hardship situation for him and impaired his ability to serve effectively in the military.

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:

On 26 October 1966, he enlisted in the Regular Army for a period of 3 years. At the time of enlistment, the applicant was 17 years and 1 month old. He was assigned to Fort Jackson, South Carolina, for basic combat training (BCT). Following completion of BCT, he was assigned to Fort George G. Meade, Maryland.

On 28 March 1967, the applicant was found guilty by a summary court-martial of three specifications of being absent without leave (AWOL) (6 February 1967, 14 February through 11 March 1967, and 12 March through 15 March 1967). He was sentenced to 30 days' confinement at hard labor and forfeiture of $50.00 pay per month for 1 month. The sentence was approved on 29 March 1967.

On 15 May 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for three specifications of failing to go at the time prescribed to his appointed place of duty. His punishment consisted of 14 days' restriction and extra duty.

On 2 June 1967, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of 14 days' restriction and extra duty.

On 14 July 1967, the applicant accepted NJP for being AWOL from his unit from 8 June through 12 July 1967. His punishment consisted of 14 days' restriction and extra duty.

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On 9 November 1967, the applicant was found guilty by a special court-martial of being AWOL from 5 August 1967 through 9 October 1967. He was sentenced to 4 months' confinement at hard labor and forfeiture of $60.00 pay per month for 4 months. The sentence was approved on 13 December 1967. The applicant was confined to the Post Stockade, Fort George G. Meade, Maryland.

On 18 January 1968, after consulting with counsel about his rights regarding separation under the provisions of Army Regulation 635-212 for unfitness, the applicant waived consideration of his case by a board of officers, a personal appearance before a board of officers and did not provide a statement in his own behalf.

On 22 January 1968, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-212 because of his repeated petty offenses, shirking of duties, and habitual AWOL.

On 26 January 1968, the appropriate authority approved the applicant's separation from the Army under the provisions of Army Regulation 635-212, with a UD. Accordingly, on 5 February 1968, the applicant was discharged after completing 5 months and 25 days of creditable military service and accruing 285 days of lost time.

On 12 July 1977, the applicant's discharge was reviewed under the Department of Defense Special Discharge Review Program (SDRP). The SDRP found the applicant's service was properly characterized at the time of discharge. On 7 November 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(4) of the regulation provided, in pertinent part, that members with an established pattern of shirking were subject to separation for unfitness. 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

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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: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. While the Board has taken cognizance of the applicant's age and his personal/family problems, none of these factors, either individually or in sum, warrants the relief requested.

2. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

3. The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 November 1979, the date the ADRB denied his request for an upgrade of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 November 1982.

4. The application is dated 27 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.

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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

__mmd___ __rwa___ __clg___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002069088
SUFFIX
RECON
DATE BOARDED	20020820
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19680205
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A54.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.5400
2.	144.3500
3.	144.9307
4.
5.
6.