MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002073312


         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. Paul Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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: In effect, upgrade of his discharge to at least general under honorable conditions. He states that he served his country and loves it dearly. He is getting older now and needs medical attention. In addition, he is living below the poverty level. He has damaged hearing from combat, has been diagnosed with post traumatic stress disorder, and was exposed to Agent Orange.

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: Much of the applicant's service record has apparently been loaned to the Department of Veterans Affairs (DVA) Regional Office in Wichita, Kansas. His partial military record shows:

On 7 January 1969, he enlisted in the Regular Army for a period of 3 years. He successfully completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 63B20, Wheel Vehicle Repairman.

Upon graduation from advanced individual training, the applicant was assigned to duty with the 301st Transportation Company, Fort Ord, California, as a Wheel Vehicle Repairman. The available records indicate he was then transferred to Vietnam where he served with Battery B, 5th Battalion, 22nd Artillery, and later with Service Battery, 5th Battalion, 27th Artillery in various duty positions such as Cannoneer, Track Vehicle Mechanic, and Wheel Vehicle Mechanic.

On 5 April 1971, the applicant was separated with an Undesirable Discharge under the provisions of Army Regulation 635-212 for unfitness. He was credited with 2 years, 1 month, and 3 days of active Federal service and he had 56 days of lost time. His DD Form 214 (Report of Transfer or Discharge) shows that he was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with Device (1960).

On 2 April 1975, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge. The ADRB summary indicates the applicant had 3 summary court-martial convictions and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, 8 times. He was discharged for unfitness due to habits and traits of character manifested by repeated commission of petty offenses and habitual shirking. He had an approved Bar to Reenlistment on 14 December 1970. The ADRB review

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further indicates many of his disciplinary actions occurred prior to being assigned to Vietnam and continued until he was recommended for discharge by his commander in Vietnam.

On 29 March 1976, the applicant was given a Clemency Discharge under the provisions of Presidential Proclamation 4313. The details surrounding the issuance of this discharge are missing from the applicant's file.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Presidential Proclamation 4313 was issued on 16 September 1974 by President Gerald R. Ford. It identified three categories of persons and permitted them to apply for a clemency discharge. Those categories were:

         1) civilian fugitives who were draft evaders
         2) members of the military who were still AWOL, and
         3) former military members who had been discharged for
         desertion, AWOL or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. For those who elected to earn a clemency discharge (AWOL’s and discharged members), they could be required to perform up to 24 months alternative service. Upon successful completion, a clemency discharge would be issued. The clemency discharge did not effect the individual’s underlying discharge, and did not entitle the soldier to any VA benefits.

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 2 April 1975, the date the ADRB denied his appeal. The time for the applicant to file a request for correction of any error or injustice expired on 2 April 1978.

The application is dated 23 April 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

__fne___ __bje___ __wdb___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002073312
SUFFIX
RECON
DATE BOARDED	20020910
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710405
DISCHARGE AUTHORITY	AR 635-212. . . . .
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5100
2.
3.
4.
5.
6.