APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge. He states, in effect, that due to Prisoner Of War training that he received, he is now mentally disabled.
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 21 October 1955. He completed 11 years of formal education. On 2 November 1972, he enlisted in the Regular Army for 4 years. His Armed Forces Qualifications Test score was 27 (Category IV). He completed the required training and was awarded military occupational specialty 11C10 (Infantryman Indirect fire Crewman). The highest grade he achieved was pay grade E-2.
Between 19 December 1972 and 4 October 1973, the applicant accepted four nonjudicial punishments (NJPs), under Article 15, Uniform Code of Military Justice (UCMJ), for four occasions of being absent without leave (AWOL) from 14 to
17 December 1972, from 20 to 21 February 1973, from 9 to
15 April 1973 and from 27 September to 2 October 1973. His punishments included forfeitures, restrictions and extra duties.
On 19 December 1973, the applicant was convicted by a special court-martial of being AWOL from 10 October to
8 November 1973. He was sentenced to a reduction to pay grade E-1, a forfeiture of $215 pay per month for 3 months and confinement at hard labor for 60 days.
On 25 February 1974, the applicant accepted an NJP, under Article 15, UCMJ, for disobeying a lawful order and for the wrongful possession of marijuana. His imposed punishment was a forfeiture of $100 pay, 7 days restriction and extra duty.
The applicant was evaluated by a psychiatrist. The applicant had no physical or mental defects sufficient to warrant separation through medical channels and that the applicant was mentally responsible, able to distinguish right from wrong, and adhere to the right.
On 1 March 1974, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness with a discharge UOTHC. The commanders recommendation was based on the applicants repeated commission of petty offenses, his inability to adapt to military life and his actions that indicated that he could not be rehabilitated for productive military service. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so.
The appropriate authority approved the recommendation and directed the issuance of a discharge UOTHC. On 7 March 1974, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 13, for unfitness with a discharge UOTHC. He had completed 1 year, and 2 days of creditable active service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
There is no evidence in the applicants military records in support of his allegation.
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.
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 7 March 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 7 March 1977
.
The application is dated 2 December 1994, 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
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