APPLICANT REQUESTS:  That his discharge under other than honorable conditions (UOTHC) be upgraded.  He states that he knows AWOL was wrong, but the Army did not want to hear about the problems he was having with his family.  He also states that his mother was dying and he had no other choice but to go AWOL.  In effect, he states that he needs an upgrade to receive Veterans benefits.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and also to determine the error or injustice as stated by the applicant is substantial, and if not, whether it is in the interest of justice to excuse the injustice and/or the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He was enlisted in the Regular Army on 18 November 1968 for 3 years.  On 21 September 1969 he was discharged to reenlist on 22 September 1969 for 6 years.  On 8 March 1970 he was discharged to reenlist on 9 March 1970 for 6 years.  The expiration term of service was 8 March 1976.

He received nonjudicial punishment under Article 15, UCMJ, for AWOL 1 through 3 November 1969. 

He was again AWOL 26 April through 3 November 1970 and confined from 4 through 17 November 1970.

Court-martial charges were preferred against him for AWOL.

He requested and received approval for discharge for the good of the service to avoid trial by court-martial.
He acknowledged he understood he may be discharged under other than honorable conditions and furnished a UD Certificate.  He also acknowledged he understood as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, ineligible for many or all benefits administered by the VA and may be deprived of his rights and benefits as a veteran under both Federal and State law.

His discharged was approved.  On 11 December 1970, he was discharged UOTHC in pay grade private E-1, under the provisions of Army Regulation (AR) 635-200, chapter 10.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

AR 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 changes 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 a UD.

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 
11 December 1970 the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 11 December 1973.

The application is dated 25 November 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.

NOTE:  The Reserve Personnel Center is requested to review the applicant’s DD Form 214 issued on 11 December 1970, concerning “date of entry” and “net service this period”, for correction deemed appropriate.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION

		Karl F. Schneider
		Acting Director