MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 05 JUNE 2003
         DOCKET NUMBER: AR2003085544


         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. Thomas B. Redfern III		Member
Ms. Karen A. Heinz		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 under other than honorable conditions discharge be upgraded. He states that he enlisted to serve his country but was "used" as a youth at Fort Ord, California and met every "drug & mental patient" coming from Vietnam. He states that he did not realize how much that affected him. He states that he deserves to be recognized as a veteran and never did anything wrong except being late for work sometimes. 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 entered active duty on 1 February 1973 at the age of 17 with 10 years of formal education. The applicant successfully completed basic and advanced individual training and in June 1973 was assigned to Fort Ord, California as a food service specialist. By October 1973 he had been promoted to pay grade
E-3. While at Fort Ord, the applicant was assigned to a basic combat training brigade, an advanced individual training brigade, and three different companies with another brigade.

Between February 1974 and February 1975 the applicant was punished four times under Article 15 of the Uniform Code of Military Justice (UCMJ) for a variety of offenses, including three counts of failing to be at his prescribed place of duty, failing to obey an order, and breaking restriction. He was also convicted by a special court-martial of two counts of failing to be at his place of duty and disrespect towards an officer. As a result of the court-martial action, the applicant was reduced to pay grade E-1.

On 20 February 1975 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 numerous UCMJ actions, his special court-martial conviction, and numerous counseling sessions, as the basis for the recommendation.

As part of the applicant's administrative separation action, he appeared before a board of officers who recommended that the applicant be discharged under other than honorable conditions. However, the board also recommended that the applicant's separation action be suspended for a period of 6 months. The approving authority concurred with the board and approved its findings and recommendation.

However, by October 1975 the applicant had accumulated six more UCMJ actions for offensives which again included failing to go to his prescribed place of duty, breaking restriction, being absent without leave for 9 days in August 1975, and disobeying an order. As a result of the applicant's continued misconduct, on 17 October 1975 his unit commander recommended that the suspended separation action be vacated and that the applicant be discharged under other than honorable conditions.

The separation action was vacated and the applicant was ultimately discharged on 31 October 1975 for unfitness under the provisions of Army Regulation 635-200, Chapter 13. He 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. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, shirking, and failure to pay just debts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

In June 1979 and June 1982 the Army Discharge Review Board denied the applicant's petition to upgrade his 1975 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 the circumstances under which he was working contributed in any way to the misconduct, which was the basis for his administrative discharge. The Board notes that the applicant was given an opportunity to correct his behavior following the board of officer's recommendation to suspend his separation action. However, the applicant continued to commit the very same offenses, which served as the basis for the original separation action. The applicant’s separation under other than honorable conditions was appropriate given his numerous incidents of misconduct.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered in June 1982 when the Army Discharge Review Board completed their second review of the applicant's discharge. The time for the applicant to file a request for correction of any error or injustice expired in June 1985.

The application is dated 24 January 2003 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__ __TBR __ __KAH __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003085544
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030605
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.