APPLICANT REQUESTS:  In effect, that his under honorable conditions discharge be changed to an honorable discharge.

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 in June 1969 for two years and received training at Fort Polk, Louisiana.  While there he was AWOL on three occasions and received one summary court-martial and one special court-martial.  He arrived in Vietnam in August 1970.  On 31 December 1970 his commander recommended he be discharged for unfitness under Army Regulation 635-212 due to frequent acts of misconduct and refusal to perform duty as directed.  Initially, applicant requested his case be considered by a board of officers; subsequently he waived that right.  He was discharged on 15 February 1971.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted
personnel.  Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

On 18 July 1972 the Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade of his discharge.

On 21 July 1977 the ADRB upgraded the applicant’s discharge to general under the provisions of the Discharge Review Program (Special).






On 10 August 1978 the ADRB considered the applicant’s service under the provisions of Public Law 95-126 and declined to upgrade his discharge.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on the date of the last ADRB review.  The time for the applicant to file a request for correction of any error or injustice expired on 10 August 1981.

The application is dated 7 February 1996 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