MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 01 OCTOBER 2002
         DOCKET NUMBER: AR2002077496


         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. Raymond V. O'Connor, Jr.		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur a. Omartian		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, that the character of his discharge be upgraded. He states that his discharge is "not equitable, and does not properly reflect [his] military service." The applicant states that while he was assigned to a unit in Germany he wanted to change his specialty but his unit first sergeant was "less than helpful." He states that he joined the Army "as a stepping stone to try to progress in [his] life" and because of the lack of "guidance and encouragement" he became "distraught and confused." He states this was particularly difficult because it came "at a time in [his] life [when he] was seeking direction." The applicant states it is important that his discharge be upgraded because it will help him to be a more productive and responsible citizen when he is released from prison. He states he suffered from "deep depression" and was disillusioned. The applicant submits no evidence in support of his request, beyond 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 15 June 1978 when he was 21 years old. The applicant had 11 years of formal education and a general technical score of 92. He successfully completed training and in September 1978 arrived in Germany. He was assigned to a field artillery unit and performed duties as a cannon crewman. In March 1979 he was promoted to pay grade E-2.

In July 1979 the applicant was punished under Article 15 of the Uniform Code of Military Justice for being absent without leave. His punishment included reduction to pay grade E-1. In July 1970 the applicant was punished under Article 15 of the Uniform Code of Military Justice for two counts of failure to repair. His punishment included a forfeiture, extra duty, and 14 days restriction.

In August 1979 the applicant was charged with multiple counts of failing to be at his appointed place of duty, disobeying lawful commands from a senior officer and noncommissioned officers, and dereliction of duty. Before final actions could be taken on those charges, additional charges were filed in October 1979. The new charges included additional counts of disobeying orders and breaking restriction.

On 5 October 1979 the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He consulted with counsel and acknowledged that 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. He did not submit any statements on his own behalf.

A mental status evaluation, conducted in conjunction with his separation processing, noted that his behavior was normal, that he was fully oriented, that his mood was level, and that his thought process was normal. There was no mention of depression or disillusionment.

The applicant's request was approved and on 26 November 1979 he was discharged "under conditions other than honorable." At the time of his separation he had 1 year, 5 months, and 12 days of active Federal service.

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.

In September 1981 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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.

There is no evidence, and the applicant has not provided any, that there were any mitigating circumstances, which would excuse the conduct which resulted in his administrative separation. The applicant voluntarily requested discharge in order to avoid the consequence of a court-martial and he has not shown that the discharge was in error or unjust. The applicant's contention that he was depressed, distraught, or confused at the time of his discharge, or that the character of his discharge does not properly reflect his military service, is not supported by any evidence in available records or provided by the applicant.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered in September 1981, the month the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired in September 1984.

The application is dated 8 July 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

__RVO__ __MKP __ __AAO __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002077496
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021001
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.