APPLICANT REQUESTS: That his under other than honorable conditions discharge be upgraded to general or honorable. 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 on 22 September 1975, completed training, and was assigned to Fort Hood, Texas. On 25 July 1977 the applicant was AWOL. He returned to military control on 23 April 1979. A 26 April 1979 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination, he stated, “I Am In Good Health”. A report of mental status evaluation determined that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and he met the medical standards for retention in the Army. On 27 April 1979 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He stated that he acknowledged that he was guilty of the charge against him which authorized the imposition of a bad-conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had no desire for further military service. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf. On 9 May 1979 the applicant’s commanding officer recommended that the applicant’s request be approved and that he receive a discharge under other than honorable conditions. On 16 May 1979 the separation authority approved the applicant’s request and directed that he be furnished an Other Than Honorable Conditions Discharge Certificate. The applicant was discharged on 23 May 1979 at Fort Sill, Oklahoma. He had 1 year, 11 months, and 4 days of active service and 637 days of time lost. Army Regulation 635-200 sets forth the basic authority for the 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. 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. DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 May 1979, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 23 May 1982. The application is dated in August 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