APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.  He states, in effect, he was not given counseling for drug addiction and was unable to serve because of psychiatric problems and racial discrimination.  He was told he would receive an honorable discharge if he accepted an administrative discharge.

Counsel offers no evidence or argument beyond that submitted with the application.

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 18 years old when he enlisted on         19 January 1968.  On his first assignment at Fort Hood, Texas he went AWOL for 13 days.  His record shows he continued to perform unsatisfactorily.  He received punishment under Article 15, UCMJ for AWOL and pending his third special court-martial his commander recommended he be discharged for unfitness.  

Prior to the finalization of the recommended discharge the applicant consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial.  His request acknowledged that he understood the nature and consequences of the undesirable discharge he might receive.  The separation authority approved the applicant’s request and on 19 March 1970 he was issued an undesirable discharge.  The total active duty service credited to him at separation was 1 year, 7 months, and 18 days and 196 days lost time.  

On 3 May 1982 the Army Discharge Review Board (ADRB), in a unanimous decision, denied the applicant’s request to upgrade his discharge.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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.  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         3 May 1982, the date of the ADRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 3 May 1985.

The application is dated 3 April 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