APPLICANT REQUESTS:  In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.  The applicant states that all of the incidents that he was involved in were brought about by his desire to bring to the attention of the officers in charge his need to be retrained into another military occupational specialty (MOS).  He alleges that he was refused permission to attend basic education so that he could attend a heavy equipment operator course.  Also, he alleges that, while in the U.S. Army Personnel Control Facility (USAPCF), he volunteered for the drug rehabilitation program and was refused.

COUNSEL CONTENDS:  In effect, that the applicant was not afforded proper rehabilitation consideration in relationship to his drug problem.  He asks the Board to afford the applicant all possible consideration.

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 and medical records show:

The applicant was born on 26 October 1955.  He completed 8 years of formal education.  On 22 January 1973, he enlisted in the Regular Army, in pay grade 
E-1, for 4 years, with parental consent, for the U.S. Army Cash Bonus Enlistment Option and assignment to the 9th Infantry Division, Fort Lewis, Washington.  His Armed Forces Qualification Test score was 40 (Category III).  He was advanced to pay grade E-2 effective 22 May 1973.  He completed his required training and was awarded MOS 11B (Light Weapons Infantryman) on 28 June 1973.  He performed duties as an Assistant Machine Gunner.
On 27 August 1973, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for, through neglect, missing the movement of his company; and for disobeying a lawful order from a commissioned officer to secure his weapon in accordance with the Company Arms Room standing operating procedures.  His imposed punishment was reduction to pay grade E-1, a forfeiture of $70 for 1 month, extra duty for 14 days, and restriction for 14 days, which he did not appeal.

On 4 March 1974, while serving in pay grade E-2 (date of advancement not known), the applicant received NJP under Article 15, UCMJ, for wrongfully and knowingly have in his possession an unspecified amount of a controlled substance, to wit:  marijuana, on two occasions; and for, without authority, going from his appointed place of duty, to wit: Arms Rooms Guard.  His imposed punishment was reduction to pay grade E-1, a forfeiture of $100, and restriction for 21 days, which he did not appeal.

On 12 April 1974, the applicant received NJP under Article 15, UCMJ, for being absent from his unit from 1-19 October and 12-15 November 1973; for failing to go at the time prescribed to his appointed place of duty on 24 October and 6 December 1973; for, through neglect, missing the movement of his company on 14 and 19 March 1974; and for wrongfully having in his possession 15 grams, more or less, of a controlled substance, to wit:  marijuana.  His imposed punishment was a forfeiture of $125 per month for 2 months, extra duty for 30 days, and restriction for 30 days, which he did not appeal.

A Report of Mental Status Evaluation, dated 22 May 1974, completed by a psychiatrist indicated that the applicant had no significant mental illness; that he was mentally responsible; that he was able to distinguish right from wrong; that he was able to adhere to the right; that he had the mental capacity to understand and participate in board proceedings; that he met the retention standards in Army Regulation 
40-501, chapter 3; that available information about the applicant suggested that it was improbable that he would be able to make a satisfactory adjustment to the military; and that he was psychiatrically cleared for any appropriate administrative action.

A Counseling Statement, dated 24 May 1974, signed by the applicant indicated that he had been advised by counsel of the basis for the contemplated action to accomplish his separation under Army Regulation 
635-200, chapter 13, by reason of unfitness; that he waived consideration, personal appearance, and representation by counsel before a board of officers; that he was not submitting statements in his own behalf; and that he understood that, as the result of issuance of an undesirable discharge (UD) UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

Special Orders 169, dated 18 June 1974, show that the applicant was assigned to the USAPCF, Fort Lewis, on 24 June 1974.

On 16 July 1974, the applicant was found physically qualified for separation and/or duty.

The facts and circumstances pertaining to the applicant’s discharge are not on file.  His DD Form 214 (Report of Separation from Active Duty) indicates that he was discharged on 26 July 1974, in pay grade E-1, under Army Regulation 635-200, paragraph 13-5a, with an UD certificate (character of service UOTHC).  He had completed 1 year, 5 months, and 12 days active military service.  He had 23 days time lost.  He received the National Defense Service Medal and the Sharpshooter Qualification Badge (M-16).

There is no evidence in the available records that the applicant was ever treated for drug abuse or drug addiction or that he requested and was denied drug rehabilitation treatment.  Also, there is no evidence that he was refused permission to attend basic education.  Further, there is no evidence that the applicant made any effort to have the alleged error or injustice corrected prior to this application.

Army Regulation 635-200, at paragraph 13-5a(1), then in effect, provided for the separation of enlisted personnel for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  An individual separated by reason of unfitness would be furnished an UD certificate, except that an honorable or general discharge certificate could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his case.

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 26 July 1974, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 26 July 1977.

The application is dated 31 January 1995, 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