APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable 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 9 May 1957. He completed 9 years of formal education. On 13 June 1974, the applicant enlisted in the Regular Army for 4 years. His Armed Forces Qualification Test score was 53 (Category III). He completed the required training and was awarded military occupational specialty 11E10 (Armor Crewman). The highest grade he achieved was pay grade E-4.
Between 13 November 1974 and 13 January 1977, the applicant accepted five nonjudicial punishments (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for three occasions of leaving his appointed place of duty without proper authority, for two occasions being absent without leave (AWOL) from 3 to 6 December 1976 and from 7 to
10 January 1977 and for being disrespectful. His punishments included forfeitures, restrictions, extra duties and a reduction to pay grade E-1.
On 11 February 1977, the applicant was convicted by a summary court-martial of being AWOL from 26 to
28 January 1977. He was sentenced to a forfeiture of
$75 pay and confinement at hard labor for 14 days.
On 14 March 1977, the applicant accepted an NJP, under Article 15, UCMJ, for failure to repair. His imposed punishment was a forfeiture of $84 pay.
On 23 June 1977, court-martial charges were preferred against the applicant for two specifications of disobeying a lawful order and for resisting an arrest. On the same day, a medical examination found the applicant medically fit for retention.
On 29 June 1977, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, 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 was afforded the opportunity to submit statements in his behalf, but declined to do so.
On 21 July 1977, the appropriate authority approved his request and directed the issuance of a discharge UOTHC.
On 2 August 1977, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He had completed 3 years, 1 month and 5 days of creditable active service and had 15 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 UOTHC 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
2 August 1977, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 2 August 1980.
The application is dated 5 June 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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