MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 07 MAY 2002
         DOCKET NUMBER: AR2002070441


         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. Samuel A. Crumpler		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. John T. Meixell		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 1974 undesirable discharge be upgraded to honorable. The applicant states that he was treated unfairly because of an injury to his knee, which he claims resulted in his discharge. He notes, in effect, that he was to receive an enlistment bonus, retain his previous grade (E-4), and be assigned to Korea in an "armored outfit." However, because of errors this did not happen. He states, instead he was assigned to an infantry unit as an "arms room clerk" and had to march "80 miles in 3 days" which caused his knee problem and subsequent surgery. The applicant states his knee problem has persisted. 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 served an initial period of active duty between April 1970 and March 1972 when he was released from active duty with an honorable characterization of service in pay grade E-4. During his initial period of active service he performed duties as a unit armorer specialist (76Y).

On 31 May 1973 the applicant reenlisted to return to active duty. His original reenlistment contract, which he authenticated, indicates that he was enlisted in pay grade E-3. His enlistment incentive included a "cash bonus" and assignment to the 9^th Infantry Division at Fort Lewis, Washington.

The applicant's service finance records were not available to the Board, but following his reenlistment on 31 May 1973 he was assigned to Fort Lewis, Washington with an element of the 9^th Infantry Division.

His records do indicate that he was initially undergoing "on the job training" as an infantryman. On 12 December 1973 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for being absent from his place for duty for five hours.

On 13 December 1973 he waived his enlistment contract and acknowledged that he would be "assigned in accordance with the needs of the service." As a result, on 16 December 1973 he resumed duties in the supply arena.

In March 1974 the applicant was again punished under Article 15 of the UCMJ. A copy of that action, however, is not in available files. The only evidence of the UCMJ action is a copy of an order acknowledging that the applicant had forfeited $50.00 of his pay as a result of the Article 15.
On 30 March 1974 the applicant departed AWOL (absent without leave). He was dropped from the rolls of the Army on 29 April 1974 and returned to military control on 9 May 1974. As a result of his absence, the applicant was convicted by a special court-martial. His sentence included reduction to pay grade E-1 and confinement at hard labor. He was confined at Fort Riley, Kansas.

In August 1974 the applicant's unit commander initiated action to administratively separate the applicant from active duty for unfitness. The commander cited several infractions by the applicant during his confinement and noted that the applicant consistently stated that he did not intend to return to duty. The applicant consulted with counsel, acknowledged receipt of the proposed separation, including the ramifications of the undesirable discharge he might receive, and waived his attendant rights. In a statement to a social worker at the correction facility, the applicant indicated that he had reenlisted "to get the combat arms bonus" so he could get married, but never got his MOS (military occupational specialty) or his bonus, and that because of an operation on his knee, he felt it would be "useless for him to pursue his military career."

The separation proposal was approved and on 16 August 1974 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph
13-5a(1), and issued an Undesirable Discharge Certificate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 13-5(a)1, then in effect, provided for the separation for unfitness, which included frequent incidents of a discreditable nature. When separation for unfitness was warranted an undesirable discharge was 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.

The record shows that the applicant apparently reenlisted for a cash bonus that was tied to successful completion of training in a combat arms specialty. When the applicant waived the enlistment contract he would not have been entitled to the associated bonus. There is no evidence, and the applicant has not provided any, that his enlistment contract was not fulfilled or that his knee condition in anyway contributed to the behavior which resulted in his undesirable discharge.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 16 August 1974, 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
16 August 1977.

The application is dated 20 February 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 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

__SAC__ __KWL __ __JTM __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002070441
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020507
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.