APPLICANT REQUESTS: In effect, the applicant requests that his bad conduct discharge be upgraded, and that he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), for his first period of service in the Army. He states he should have received a discharge when he extended. The applicant states that he was using drugs and was not thinking straight, but is now enrolled in a drug program and is doing well. 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 enlisted in the Army for three years on 15 March 1983. On 14 May 1983 the applicant received nonjudicial punishment under Article 15, UCMJ, for breach of the peace. The applicant completed training and was assigned to Fort Polk, Louisiana. On 23 August 1984 he received the Army Achievement Medal. On 29 November 1984 the applicant received nonjudicial punishment for wrongful use of marijuana. The applicant was promoted to pay grade E-4 in July 1985 and in December was assigned to a signal battalion in Korea. On 28 February 1986 the applicant extended his enlistment for three months. On 14 May 1986 the applicant again extended his enlistment, this time for one year, causing his new separation date (ETS) to be 14 June 1987, 4 years and 3 months from his initial enlistment date. On 21 May 1986 the applicant was awarded the Good Conduct Medal for the period 15 March 1983 to 14 March 1986. On 30 June 1986 the applicant received nonjudicial punishment for failure to go to his place of duty. The applicant was AWOL from 24 September through 29 September 1986, on 10 October 1986, and from 23 October through 13 November 1986. On 5 December 1986, before a general court-martial which convened at Camp Casey in Korea, the applicant was arraigned, tried, and pled guilty to wrongful possession of methamphetamine, wrongful possession of a switchblade knife, and three specifications of AWOL. The applicant was found guilty of all charges and sentenced to be reduced to the pay grade of E-1, forfeiture of all pay and allowances, confinement for thirteen months, and a bad conduct discharge. The findings and sentence were affirmed on 27 March 1987. The applicant was discharged on 21 October 1987 from the Army Correctional Activity at Fort Riley, Kansas. He had 3 years, 8 months, and 21 days of active service and 316 days of lost time. Army Regulation 635-5, then in effect, establishes policy for preparing and distributing DD Form 214 (Certificate of Release or Discharge from Active Duty). Paragraph 1-4 states, in pertinent part, that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. It will not be prepared for enlisted members discharged for immediate reenlistment. 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 21 October 1987, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 21 October 1990. The application is dated 15 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