APPLICANT REQUESTS:  That his bad conduct discharge (BCD) be upgraded to honorable, that the reason for his discharge be changed to “for the convenience of the government” and his reentry (RE) code be changed from RE-4 to RE-1.  He contends that the punishment that he received was too severe when compared to today’s standards and that he has been a good citizen and free of drug charges since his release from the Army.

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 enlisted in the Regular Army for 2 years on 11 January 1972.  He received a BCD on 23 October 1974 as the result of a conviction by a general court-martial.  During his service he accumulated 257 days of lost time.

On 4 January 1974 he pleaded guilty before a general court-martial to four specifications of violation of Article 92, UCMJ, unlawful possession and sale of controlled substances (drugs).  He was found guilty of the charge and specifications and in accordance with a pretrial agreement with the convening authority, was sentenced to a BCD, confinement at hard labor for 9 months, forfeiture of all pay and allowances and reduction to pay grade E-1.

His sentence to confinement was remitted to 8 months by the Clemency and Parole Board.  Thereafter, the findings and sentence of the his court-martial was affirmed by the Court of Military Review.  At the conclusion of his period of confinement, he was separated from the service with a BCD pursuant to authority contained in Army Regulation 635-200. The reason for his discharge was conviction by a court-martial. He was assigned an RE-4 code.

Army Regulation 635-200, Personnel Separation, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The reason and authority for the separation will be determined by the type separation.  Separation by reason of a general court-martial is a nonwaivable disqualification for future entry into the service.

Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program, provides that persons separated from the last period of service with a nonwaiverable disqualification will be assigned code RE-4.  

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 October 1974, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 October 1977.

The application is dated 3 November 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