MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:  
	

	BOARD DATE:  16 October 2003
	DOCKET NUMBER:  AR2002083109


	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. Joyce A. Wright

Analyst


  The following members, a quorum, were present:


Mr. Arthur A. Omartian

Chairperson

Ms. Mae M. Bullock

Member

Mr. Hubert O. Fry

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)

 
APPLICANT REQUESTS:  That his undesirable discharge be upgraded.  He states that while serving in Korea his brother was wounded and was in critical condition; however, he was not granted leave.  He was given a choice of discharge, which he accepted.  

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 was inducted on 6 October 1970.  He was trained as an infantry mortar crewman.

The applicant's Army Discharge Review Board (ADRB) Proceedings, dated 21 May 1980, shows that he received three punishments under Article 15, the Uniform Code of Military Justice (UCMJ), for being AWOL from 30 November to 4 December 1970 (4 days) and for failure to go to his appointed place of duty on two occasions.

On 23 June 1971, he was convicted by a special court-martial of being AWOL from 3 January to 2 March 1971 (59 days) and from 6 March to 28 May 1971 (83 days).  His sentence consisted of a forfeiture of pay and confinement at hard labor for 4 months.

Charges were preferred against the applicant on 21 November 1972, for failure to go to his place of duty and for disobeying a lawful order on four occasions.

On 22 November 1972, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  The applicant waived his rights and elected not to submit a statement in his own behalf.  

On 30 November 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge.  The applicant was discharged on 13 December 1972.  He had a total of 1 year, 6 months, and 3 days of creditable service and had 247 days of lost time due to AWOL and confinement.

The applicant applied to the ADRB for an upgrade of his discharge on 2 October 1978.  The ADRB determined that his discharge was proper and denied his request on 21 May 1980.  He was notified of the ADRB denial on 6 June 1980.

Army Regulation 635-200 sets forth the basic authority for 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 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 June 1980, the date of his ADRB denial.  The time for the applicant to file a request for correction of any error or injustice expired on 6 June 1983.

The Board has noted the applicant's contention; however, there is no evidence in the available records, and the applicant has provided no evidence, to support his contention.

The application is dated 19 November 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__ao___  ___mb__  ___hf____  CONCUR WITH DETERMINATION




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



INDEX

CASE ID
AR2002083109
SUFFIX

RECON

DATE BOARDED
20031016
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19721213
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
189
2.

3.

4.

5.

6.