Title: APPLICANT REQUESTS: That his discharge be upgraded
Author: +

ABCMR Memorandum of                                                              AC97-07859
Consideration (cont)

APPLICANT REQUESTS:  That his discharge be upgraded.  He states, in effect, that he received the Soldier’s Medal and let it go to his head.  He was told that he would receive an upgrade 30 days after his 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 was born on 26 April 1957.  He completed 11 years of formal education.  He enlisted in the Regular Army on 30 August 1974 for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

On 4 February 1975, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to repair.

On 24 September 1975, the applicant accepted NJP under Article 15, UCMJ for failure to repair.

On 20 October 1975, the applicant was awarded the Army Commendation Medal for heroism.  There is some evidence in the records that he may have originally been recommended for the Soldier’s Medal.

On 6 February 1976, the applicant accepted NJP under Article 15, UCMJ for being disrespectful towards his superior non-commissioned officer.

On 12 March 1976, the applicant received a local bar to reenlistment.

On 17 March 1976, the applicant accepted NJP under Article 15, UCMJ for possessing marijuana.

On an unknown date, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 18 to 23 November 1975, 19 to     21 April 1976 and 26 April to 5 June 1976.

On 16 June 1976, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation   635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he stated, “…reason for me going AWOL, Sir, is I wanted out of the Army…”

On 23 June 1976, the applicant completed a separation physical and was found qualified for separation.

On 30 July 1976, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.

On 12 August 1976, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10 with a discharge under other than honorable conditions.  He had completed 1 year, 9 months and 13 days of creditable active service and had 61 days of lost time.

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.

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 12 August 1976, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 12 August 1979.

The application is dated 26 January 1997.  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

                                 Loren G. Harrell
					 	 Director