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Decision Text

ARMY | BCMR | CY1990-1993 | 9108307
Original file (9108307.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Reconsideration of his previous request to correct his records by upgrading his discharge to general under honorable conditions.
APPLICANT STATES : In effect, that what happened was not really his fault.

NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 20 May 1992 (COPY ATTACHED).

The applicant relates that he got married because he had been promised when he re-enlisted that he would be stationed at Fort Lee, Virginia. Immediately thereafter he received orders to Germany. In response he went AWOL and while he was AWOL he worked as a mechanic. Unknown to him some of the vehicles he worked on were stolen. He returned to duty and was doing well but he was charged and convicted by civil authorities of receiving stolen property. During the separation processing he was ill advised and misled about the waiver of his rights and the type of discharge he would receive. He was told that he would receive a general discharge. None of this would have happened if the Army had kept the reenlistment promises to him.

The applicant pled guilty to grand larceny on 24 October 1975.

DISCUSSION : Considering all the evidence, allegations,
and information presented by the applicant, together
with the evidence of record, applicable law and
regulations, it is concluded:

1. In the face of the applicant’s guilty plea his assertion, that he did not know he was involved with stolen property, is unconvincing as is his contention that the Army was responsible for his behavior.

2. His unsupported contention that he was misinformed and ill advised during the discharge process do not demonstrate an injustice in the discharge. The Board is unable to conclude that any other type discharge would have transpired even if the applicant had exercised all of his rights. The seriousness of the offense, the fact that he was unavailable to complete his period of service because of the sentence to imprisonment and his overall record indicate that his service was properly characterized.

3. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.

4. The overall merits of the case, including the latest
submissions and arguments are insufficient as a basis
for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for
granting the applicant's request.

DETERMINATION : The applicant has failed to submit
sufficient relevant evidence to demonstrate the
existence of probable error or injustice.


BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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