APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to general. The applicant states that he sold marijuana on two occasions to a drug suppression team agent, however, there were mitigating circumstances, in that he did this at the request of an NCO, and not for profit. When apprehended, he requested legal assistance, and ultimately was advised to request a discharge in lieu of trial by court-martial. He states that he has learned from his mistake, that he was wrong and naive, and realizes that this discharge will stay with him all his life.
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:
The applicant entered the Army on 7 December 1983, completed training and was assigned to Fort Knox, Kentucky.
On 3 September 1985 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty and for disobeying a lawful order. On
19 February 1986 he received a letter of reprimand for driving after drinking.
On 3 April 1986 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under Army Regulation 635-200, chapter 10. He stated that he understood the elements of the offense(s) charged and was guilty of the charge(s) or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant stated that he understood the nature and consequences of the other than honorable conditions discharge that he might receive. He declined to make a statement in his own behalf.
The applicants commanding officer recommended that the applicants request be approved and that he receive an other than honorable conditions discharge, based on the applicants substandard job performance and his numerous military and civilian criminal convictions.
On 25 April 1986 the separation authority approved the request and directed that the applicant be discharged under other than honorable conditions. He was discharged at Fort Knox on 12 May 1986. He had 2 years, 5 months, and 6 days of service.
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.
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
12 May 1986, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 12 May 1989.
The application is dated 10 July 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
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