APPLICANT REQUESTS:  In effect, the applicant requests that his bad conduct discharge be upgraded to honorable or general.  He states, in effect, that he was a minor and that his counsel was inadequate.  

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 was 17 years old when, with the consent of both parents, he enlisted in the Army for two years on 
7 August 1974.  He completed basic training and was assigned to Fort Gordon, Georgia in November 1974 for advanced training.

On 17 December 1974 the applicant was placed in pre-trial confinement for assaulting a soldier and for robbing a post exchange.  On 26 December 1974 he requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  On 30 January 1975 the separation authority disapproved his request.

On 20 February 1975 the applicant was arraigned and tried by a general court-martial.  He pled guilty to unlawfully entering a concession of the post exchange with the intent to commit larceny, larceny, and assault.  The applicant was sentenced to a bad conduct discharge, forfeiture of $200.00 per month for nineteen months, and confinement for nineteen months.  The applicant was confined at the disciplinary barracks at Fort Leavenworth, Kansas.  He was released on parole on 
14 November 1975.

On 20 January 1976 the Court of Military Appeals denied the applicant’s petition for review of his case.

The applicant was discharged on 14 April 1976.  He had 
4 months and 3 days of service and 485 days of lost time.
   
The maximum sentence authorized by the Manual for Courts-Martial based on the findings of guilty for the charged 

offenses is a dishonorable discharge, confinement for 
10 years and 6 months, and forfeiture of all pay and allowances.

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 
14 April 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 April 1979.

The application is dated 18 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