MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 05 SEPTEMBER 2002
         DOCKET NUMBER: AR2002071244


         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		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 1980 under other than honorable conditions discharge be upgraded to a general discharge. He states, in effect, that he served honorably after joining the Army until he was assigned to Fort Bragg, North Carolina. At Fort Bragg, the applicant notes, he had a platoon sergeant that did not like him and gave him "a hard time." However, in spite of the problems with his platoon sergeant, the applicant stated that he "still tried as hard as [he] could." He states that he reenlisted for six additional years and then went home on leave. While at home he discovered that his mother was sick and not being taken care of. However, he returned to his unit after his leave period and continued to go home as often as possible to take care of his mother. He notes that he attempted to get additional leave time from his platoon sergeant but was continually denied. The applicant states that one weekend he went home after receiving a call that his mother was sick and found that she was sick and had no food or money. He states that he took his mother to the doctor and called his platoon sergeant for additional leave time. He states the platoon sergeant told him he was "awall [sic]," that he might as well just get out, and that he would be court-martialed when he returned. The applicant states that he decided to just stay home and tend to his mother. In support of his request he submits an undated letter from his brother who identifies himself as an Army command sergeant major currently assigned to Fort Bragg, North Carolina. The author of the statement indicates that he met his brother's platoon sergeant, who spoke badly about the applicant. The author states that he went to visit his brother and the platoon sergeant informed him that he had not seen the applicant and that the applicant was "considered as awall [sic]." The author continued that when he finally saw the applicant, the applicant told him he was "awall [sic]" but was going to return to his unit and accept his punishment. The undated statement is signed, but not notarized.

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 in November 1975, at the age of 18, with 12 years of formal education and a GT (general technical) score of 116.

The applicant successfully completed training and was assigned to units in Texas, Korea, and Florida prior to being assigned to Fort Bragg, North Carolina in June 1979. His performance evaluation reports while in Korea, Florida and Texas were complimentary and ranged in scores from 97.5 to 119, out of a possible score of 125. He was promoted to pay grade E-3 in 1976 and to E-4 in 1977. He was awarded an Army Good Conduct Medal in November 1978.
In September 1979, shortly after his arrival at Fort Bragg, the applicant was involved in an altercation, along with his brother (a service member also stationed at Fort Bragg and the author of the applicant's supporting statement), at a local bar, resulting in a gun shot wound to his thigh. His records do not indicate if any charges were filed and the line of duty investigation notes "due to the many discrepancies in the statements, a sound conclusion cannot be drawn. My findings must therefore be IN LINE OF DUTY."

On 31 October 1979 the applicant reenlisted for a period of 6 years.

In February 1980 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for failing to maintain his post while on guard duty. His punishment included extra duty and restriction.

On 11 July 1980 the applicant's duty status was changed from "present for duty" to AWOL (absent without leave). His name was dropped from the rolls of the Army on 9 August 1980. On 18 August 1980 the applicant was apprehended by civilian authorities for a hit and run incident and speeding. He was confined by civilian authorities, convicted and fine $52.00. He was released to military authorities and returned to Fort Bragg on 3 September 1980.

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 under other than honorable conditions 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. In a statement submitted on his own behalf he noted that he did not wish to stay in the Army because he had serious problems with his family and did not believe he could help them if he remained in the Army. His unit commander noted that the applicant had told him [the commander] that his mother "was experiencing financial difficulties, that she is an alcoholic, and cannot read or write." He stated the applicant informed him that there was no one home to care for his mother and that he decided to go AWOL in an attempt to help his mother.

A mental health evaluation, conducted on 10 September 1980, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal. It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The applicant's request was approved and on 2 October 1980 he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He service was characterized as under other than honorable conditions.

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 had not provided any, that his under other than honorable conditions discharge was erroneous or unjust. The applicant contends that he was AWOL because he was unable to secure leave but submits no evidence, which supports that contention, or evidence that he attempted to secure help via his chain of command prior to departing AWOL.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 2 October 1980, the date the 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
2 October 1983.

The application is dated 19 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

__CLA __ __MHM__ __JTM __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002071244
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020905
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.	110.00
2.
3.
4.
5.
6.