MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 24 SEPTEMBER 2002
         DOCKET NUMBER: AR2002070966


         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. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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)

---

APPLICANT REQUESTS: That his under other than honorable conditions discharge be upgrade to under honorable conditions. He states, in effect, that his alcoholism and personality/behavior disorders were mitigating factors in his being absent without leave and in his misconduct. He states that he was unable to "cope with the change of command" and that "basic training" damaged his nerves and contributed to his alcoholism. He maintains that his "willful misconduct was cause[d] by an anachronistic characterization neuropsychiatric disability." He also states, in effect, that his legal counsel did not give him the opportunity to request an administrative discharge in lieu of trial by court-martial. The applicant submits no evidence in support of his request, other than his self-authored statement.

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 enlisted and entered active duty on 28 July 1972. At the time of his enlistment he was 18 years old and had 10 years of formal education. He received excellent conduct and efficiency ratings during both basic and advanced individual training and was promoted to pay grade E-2 in November 1972. On
1 March 1973 he was awarded specialty 64C (motor transport operator). Following completion of training he was assigned to permanent duty at Fort Hood, Texas in accordance with his enlistment contract. However, on 1 April 1973 he was reported as absent without leave (AWOL) and on 1 May 1973 was dropped from the rolls of the Army.

The applicant was ultimately apprehended by civilian authorities and returned to military control on 12 April 1974. As a result of his AWOL, and in accordance with his plea, he was convicted by a special court-martial and sentenced to 2 months confinement at hard labor, forfeiture and a bad conduct discharge. The sentence was approved but execution of the discharge was suspended "for the period of confinement and six months thereafter, at which time, unless the suspension is sooner vacated" the discharge would be "remitted without further action."

In August 1974, following completion of his confinement and retraining, the applicant was assigned to Fort Sill, Oklahoma. In December 1974 the applicant was convicted by a special court-martial of two counts of receiving stolen property in September 1974, which "he then well knew, had been stolen." His sentence included confinement, forfeiture, and a bad conduct discharge.

In March 1975 he underwent a physical examination. The applicant indicated he was in "Good" health and made no mention of any depression, excessive worry, memory loss, or nervous trouble of any sort. The examining physician found him medically qualified for separation. The applicant's service medical records, contained in files available to the Board, contain no evidence of treatment for alcoholism, or identification of personality/behavior disorders.

On 7 March 1975 the applicant was discharged under other than honorable conditions and issued a Bad Conduct Discharge Certificate. At the time of his discharge he had 11 months and 5 days of creditable service and more than 1500 days of lost time due to AWOL and confinement.

As of March 2002 the applicant was confined at the Price Daniel Unit in Snyder, Texas.

Army Regulation 635-200, Chapter 10 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. However, there is no entitlement for an individual to have such a request granted and the authority to approve the request rests with the appropriate separation authority.

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 provided any, that there were any medical or other mitigating circumstances which would excuse the behavior which resulted his discharge under other than honorable conditions and the issuance of a Bad Conduct Discharge Certificate. The evidence indicates the applicant was given a second chance following his initial court-martial conviction and he has provided no evidence that his discharge was in error or unjust. Additionally, his contention that he was entitled to a separation for the convenience of the government, or that his discharge should be upgraded because he was not given an opportunity to request such a discharge, is without foundation.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 March 1975, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 7 March 1978.

The application is dated 9 March 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

__AAO__ __KWL __ __DPH__ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2002070966
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020924
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.