MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 12 AUGUST 2003
         DOCKET NUMBER: AR2003086214


         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. Kenneth H. Aucockl		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones II		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 honorable or discharge for the convenience of the government.

The applicant states that he had an alcohol and/or drug problem. He was offered a discharge without an explanation of the consequences of an other than honorable discharge. Prior to being AWOL, he had a good record. He was not offered drug or alcohol counseling. His drug and alcohol problems impaired his ability to serve. He had only a 9th grade education.

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:

The applicant enlisted in the Army for three years on 30 November 1970, completed training, and in April 1971 was assigned to Fort Benning, Georgia as a carpenter. He was AWOL from 6 July 1971 to 12 July 1971, and on 16 July 1971 received nonjudicial punishment under Article 15, UCMJ.

The applicant went AWOL on 19 November 1971. He was apprehended by civil authorities in Medoryville, Indiana on 2 February 1972, returned to military control on 3 February 1972, and attached to the personnel control facility at Fort Leonard Wood, Missouri.

On 9 February 1972 charges were preferred against him for being AWOL from 19 November 1971 to 3 February 1972.

A 10 February 1972 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that his health was good.

The applicant's request for discharge is not available to this Board. However, in an undated endorsement, the applicant's commanding officer recommended disapproval of the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

He stated that his conduct and efficiency ratings were as shown on his DA Form 20 (Enlisted Qualification Record). Those ratings show a conduct rating of GOOD and an efficiency rating of EXCELLENT for the entry date of 28 April 1971; and conduct and efficiency ratings of UNSATISFACTORY for the entry dates of 19 November 1971 and 18 December 1971. He stated that the applicant had 12 months of good time, and that he was presently pending trial for AWOL totaling 76 days. He stated that the applicant had a prior period of AWOL totaling six days. That officer stated that the applicant had a productive service record prior to going AWOL and felt that with the proper rehabilitative efforts that he could again be an effective soldier. He recommended that the applicant be retained in the service.

The commanding officer of the personnel control facility at Fort Leonard Wood also recommended that the applicant be retained in the service.

Although the 7 March 1972 action by the separation authority indicated that he had reviewed the request for discharge, the copy of the form letter providing for action by the separation authority failed to indicate his decision.

The applicant was discharged on 10 March 1972 under conditions other than honorable under the provisions of Army Regulation 635-200, chapter 10. He had 1 year and 21 days of service and 82 days of lost time.

Army Regulation 635-200, chapter 10, then in effect, provides for discharge for the good of the service, and states that an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. That chapter states that commanders will ensure that there is no element of coercion in submitting such a request. The member will be given a reasonable time to consult with counsel and to consider the wisdom of submitting such a request. If he elects to do so, the member will personally sign the request, certifying that he understands that he may receive a discharge under other than honorable conditions and that he understands the nature of such a discharge and the possible consequences thereof. The member's counsel will sign as a witness. The request will be forwarded through channels to the officer who has general court-martial jurisdiction over the individual. Commanders exercising general court-martial authority are authorized to approve requests for discharge for the good of the service and to order such discharge. An undesirable discharge certificate will normally be furnished; however, the discharge authority may direct an honorable or general discharge, if warranted.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his discharge was in error or unjust and as such there is no basis to correct his record as he has requested.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 March 1972, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 10 March 1975.

The application is dated 22 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

__TSK __ __WDP _ __FCJ __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003086214
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030812
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.