MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002079994


         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		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 undesirable discharge (UD) be upgraded to honorable.

APPLICANT STATES: In effect, that he is a large and strong black man who was being harassed by other black soldiers in the company. He states that because of his strength and size, he was afraid to fight back because he knew that he would get in trouble. He states that he talked to his chain of command; however, they would not intervene. He states that he was 19 years old and did not know how to handle the situation other than to leave.

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:

On 31 March 1973, the applicant enlisted in the Regular Army for a period of 3 years and for training in military occupational specialty (MOS) 94S, Food Specialist. The applicant completed basic combat training and started advanced individual training (AIT); however, he never completed AIT.

On 2 July 1973, while still in AIT, the applicant departed his unit in an absent without leave (AWOL) status and remained absent until on/about 21 September 1973. On 19 October 1973, the applicant was convicted by a summary court-martial of the above period of AWOL. He was sentenced to forfeiture of $200.00 pay per month for 1 month and 45 days of hard labor without confinement.

On 2 February 1974, the applicant departed his unit AWOL and remained AWOL until 6 February 1974. On 7 February 1974, the applicant once again departed his unit AWOL and remained AWOL until 13 March 1974. On 1 April 1974, court-martial charges were preferred against the applicant for the above two specifications of AWOL.

On 20 March 1974, after consulting with counsel about his rights, the applicant voluntarily, and in writing, requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service. The applicant submitted a statement in his own behalf in which he stated that he joined the Army to make up for high school; however, he could not adjust to military life. He stated that his grandmother was afraid if he remained in the Army he would get into more trouble. He also stated that he wanted to get out to help his grandmother. The chain of command recommended approval of the applicant’s request for discharge with a UD.
On 9 April 1974, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UD. Accordingly, on 18 April 1974, the applicant was discharged from the Army after completing 8 months and 19 days of creditable military service and accruing 120 days of lost time.

On 4 September 1980, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations. On 8 September 1981, the ADRB denied the applicant’s request to upgrade his discharge.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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 this Board 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:

1. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent, corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

2. The Board noted that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 September 1981, the date the ADRB denied his request for an upgrade of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 September 1984.

4. The application is dated 27 January 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 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__fne___ __hof___ __mjnt__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002079994
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740418
DISCHARGE AUTHORITY	AR 635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.