APPLICANT REQUESTS:  In effect, that his undesirable discharge be upgraded to general.

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 entered active duty on 1 May 1970 and by December 1970 had accumulated several periods of AWOL and was punished three times under Article 15, UCMJ.  In March 1971 he was punished a fourth time under Article 15, UCMJ for failing to be at his appointed place of duty and received a Summary Court-martial for wrongfully appropriating a military vehicle.

On 9 April 1971 he was again reported as AWOL.  He was apprehended by military authorities on 24 August 1972.  When charges were preferred he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He did not submit any statements on his own behalf.

The separation authority approved the request and on 27 September 1972 he was separated with an undesirable discharge under the provision of Army Regulation 635-200, chapter 10.  He had 10 months and 22 days of creditable service and more than 500 days lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
27 September 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 September 1975.

The application is dated 2 December 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