MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 17 JUNE 2003
         DOCKET NUMBER: AR2003087727


         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. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. 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 be upgraded. He states that he was young, made a stupid mistake, his wife was pregnant, and he was unable to adjust to military life. He states that he is now unable to qualify for Department of Veterans Affairs benefits because of 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 1 August 1972. He was 17 years old at the time of his enlistment and had 11 years of formal education. His records indicate that at the time of his enlistment he was not married.

The applicant successfully completed training, receiving excellent conduct and efficiency ratings, and was assigned to Fort Lewis, Washington for on the job training (OJT) as a motor transport operator in October 1972.

He was promoted to pay grade E-2 in December 1972. Shortly after his promotion, the applicant was punished under Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty. In January 1973 he was punished under Article 15 of the Uniform Code of Military Justice for wrongfully appropriating a desk that was the property of the United States Government.

In May 1973 he was reassigned to another unit at Fort Lewis, Washington to perform duties as an infantryman. In spite of his two records of nonjudicial punishment the applicant received excellent conduct and efficiency ratings prior to being reassigned.

In June 1973 the applicant completed a record of emergency data that indicated he had a spouse and one child.

In December 1973 the applicant received a performance evaluation report indicating his performance was below average in all six rating categories. His rater indicated that the applicant was not dependable, that he lied to get out of work, and was absent from duty on several occasions. He recommended the applicant not continue on active duty. The applicant was provided a copy of the performance evaluation and elected not to submit a rebuttal.

On 3 December 1973 the applicant was punished for a third time under Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty. His punishment included forfeiture, restriction to the company area and extra duty. In the applicant's appeal he stated that he was depending on other individuals to give him a ride to work, and on the day in question, his ride was late. He noted that his wife was pregnant and that she did not have a driver's license and if he were restricted he would not be available if something should happen to her or his daughter. His appeal was denied.

On 24 December 1973 and 25 January 1974 the applicant was punished two more times under Article 15 of the Uniform Code of Military Justice for three additional counts of failing to go to his appointed place of duty. He did not appeal either of those actions.

On 24 January 1974 the applicant underwent a physical examination in preparation for separation under the provisions of Army Regulation 635-200, Chapter 13 for unfitness. The applicant indicated in his report of medical history that his health was good and that he was not suffering from depression or excessive worry, although he did have nervous trouble. The examining physician, however, found the applicant medically qualified for separation with a physical profile of 1-1-1-1-1-1.

On 7 February 1974 the applicant was assigned to the Personnel Control Facility at Fort Lewis.

Although the applicant's file does not contain documents associated with his separation action, other than his separation physical examination, his separation document indicates that he was discharged under other than honorable conditions on 18 March 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(4). He was issued an undesirable discharge certificate. The applicant was assigned to the Personnel Control Facility at the time of his separation.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation f 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, sexual perversion, drug abuse, shirking, failure to pay just debts, and failure to support dependents. Paragraph 13-5a(4) specifically applied to separations for unfitness when the




individual had “an established pattern for shirking.” When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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.

In the absence of evidence to the contrary, the Board presumes the applicant's administrative separation was processed in accordance with applicable laws and regulation. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. The Board notes that the applicant did receive excellent conduct and efficiency ratings on two separation occasions, which indicates he was capable of honorable service. The Board also notes that he was punished twice under Article 15 of the Uniform Code of Military Justice, prior to being married which tends to indicate that his family situation was not the only basis for his incidents of misconduct which ultimately resulted in to his discharge for unfitness.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 March 1974, the date applicant was discharge. The time for the applicant to file a request for correction of any error or injustice expired on 18 March 1977.

The application is dated 27 February 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

__FNE __ __HOF__ __MJT __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003087727
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030617
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.