APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.

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 and entered on active duty on 1 April 1975.  The applicant received numerous counseling statements for writing bad checks, poor performance and failure to report. The applicant received nonjudicial punishment (NJP) under Article 15 UCMJ on three occasions for offenses of AWOL, disrespect, and stealing.  On 21 June 1976 the applicant acknowledged recommended elimination for frequent incidents of misconduct and for financial mismanagement.  He consulted with counsel and waived his attendant rights.  The separation authority approved the recommendation and directed that an undesirable discharge certificate be issued.  On 6 August 1976 he was discharged with 1 year 4 months and 6 days active duty service.

On 25 May 1982 the Army Discharge Review Board,(ADRB) in a unanimous decision, denied the applicant’s request to change the character of the 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.

Army Regulation 635-200 sets forth the policy and
prescribes the procedures for administrative separation
of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and
unsuitability.  When separation for unsuitability was warranted an honorable, general, or undesirable discharge was issued as determined by the separation authority based upon the individual's entire record.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on        25 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 25 May 1985.

The application is dated 18 March 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