MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 24 JULY 2003
         DOCKET NUMBER: AR2002082370


         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. John P. Infante		Member
Ms. Yolanda Maldonado		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 discharge “under conditions other than honorable” be changed to show that he was discharged by reason of disability. The applicant states that after he attempted suicide he received no assistance from his chain of command and was not afforded an opportunity for psychiatric treatment. He states he was discharged instead. The applicant states he has been under a doctor’s care and receiving social security benefits since his discharge. He submits no evidence in support of his request.

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 21 September 1971 at the age of 18, with 11 years of formal education. He successfully completed basic and advanced individual training and received excellent conduct and efficiency ratings. Following completion of training, in April 1972 he was assigned to an aviation unit in Germany for duty as a wireman.

Between May 1972 and August 1973 the applicant was AWOL (absent without leave) on ten different occasions totaling more than 40 days of lost time. During that same period of time he was punished seven times under Article 15 of the Uniform Code of Military Justice. In addition to his AWOL offenses, the applicant was also punished for failing to obey an order, failing to be at his appointed place of duty, and destruction of private and military property.

On 31 July 1973 the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 13 for unfitness. The commander cited the applicant’s “frequent incidents of a dicredable [sic] nature with civil and military authorities,” his substandard appearance, and conduct and performance as the basis for his recommendation.

The applicant acknowledged receipt of the propose separation, consulted with counsel and waived his attendant rights, including his right to present his case before a board of officers.

The applicant underwent a mental status evaluation which noted that he was fully alert and oriented, and that his thought process was clear. The evaluating physician did note that the applicant’s mood was depressed but found him mentally responsible, able to tell right from wrong and suffering from “no significant mental illness.” A physical examination also found the applicant fully qualified for discharge with a physical profile of 1-1-1-1-1-1.

Medical records available to the Board do not indicate treatment or admission for any suicide incidents.

The commander’s recommendation for separation was approved and on
24 August 1973 the applicant was discharged under other than honorable conditions and was issued an undesirable discharge certificate.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Separation for unfitness included frequent incidents of a discreditable nature, drug abuse, shirking, failure to pay just debts, and failure to support dependents. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a solider is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation is an indication that the applicant is fit and there is no basis for referral for disability processing

In May 1986 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 his separation for unfitness was not appropriate at the time the discharge was executed in 1973. The applicant’s contention that he should have been discharged by reason of disability is not supported by any evidence contained in the applicant’s military service medical records or his military personnel file.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered in May 1986, the date the Army Discharge Review Board completed their review. The time for the applicant to file a request for correction of any error or injustice expired in May 1989.

The application is dated 29 October 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 _ __JPI ___ __YM___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002082370
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030724
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.	108.00
2.
3.
4.
5.
6.