APPLICANT REQUESTS:  That his undesirable discharge (UD) be upgraded to honorable.  He states:  clemency is warranted as he has suffered long enough; his conduct and efficiency ratings in the Army were good; he was airborne qualified; he has been a good citizen since discharge; he was young and immature as a soldier; his drug addiction impaired his ability to serve; his punishment was too harsh.

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 born on 21 August 1955 and enlisted in the Regular Army for 4 years on 21 June 1973.  Following completion of the required military training, he was assigned to a unit at Fort Bragg, North Carolina, with duty as an artilleryman.

While at Fort Bragg, the applicant began using heroin.  The Army identified his drug problem and provided treatment, but after a short period of being drug free, the applicant reverted to drug use.

During a drug deal on 16 November 1974, the applicant was charged with the murder death of the drug dealer, who was shot.  On 3 March 1975, he pleaded guilty in civil court to a charge of felonious voluntary manslaughter and was sentenced to 7 years in confinement.

Under the provisions of Army Regulation (AR) 635-206, action was undertaken to administratively separate the applicant by reason of a civil court conviction.  He was advised of the basis for the contemplated separation action and the rights available to him, as well as the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.  On 29 July 1975, the appropriate authority approved the recommendation and directed the issuance of a UD.  Therefore, on 22 August l975, he was discharged under the provisions of AR 635-206 for a civil court conviction with a UD.

The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

The applicant appealed to the Army Discharge Review Board (ADRB)seeking to upgrade his discharge.  In a personal appearance hearing on 10 September 1979, the ADRB reviewed the applicant’s case and voted to deny relief.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Section III of the regulation provided, in pertinent part, that members convicted by a civil court were subject to separation.  An undesirable discharge was normally considered appropriate.

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.

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 the aforementioned requirement

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on/about 17 September 1979, the date of the ADRB’s action to deny the applicant’s request for a discharge upgrade.  The time for the applicant to file a request for correction of any error or injustice expired on 17 September 1994.

The application is dated 28 July 1995 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

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director