APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions. He states in effect, that the recruiters deceived him by verbally promising him Officers Candidate School.
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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed personnel records.
He was born on 3 December 1945. He completed 10 years of formal education. On 19 December 1963, he enlisted into the Regular Army for 3 years. His Armed Forces Qualification Test score was 62 (Category III).
On 27 February 1964, the applicant was convicted by a special court-martial of stealing from the military exchange store. He was sentenced to confinement at hard labor for
3 months and a forfeiture of $40 pay per month for 3 months.
On 2 April 1964, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from
22 to 23 March 1964. His imposed punishment was a forfeiture of $15 pay and 14 days extra duty. On 16 April 1964, the applicant was reported for being AWOL. On
21 April 1964, the applicant was arrested by civil authorities for breaking and entering.
On 18 July 1964, the applicant was tried and convicted by civil authorities for breaking and entering. He was sentenced to confinement at hard labor for 5 years.
On 15 September 1964, the applicant was notified that the commander was recommending him for a discharge under the provisions of Army Regulation 635-206, due to a conviction by a civil court. The applicant was advised by legal counsel of the basis for the contemplated separation and the rights available to him. He was also advised of the effects of a discharge UOTHC. 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.
On 25 September 1964, the convening authority approved the recommendation and directed the issuance of a discharge UOTHC. On 5 October 1964, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206, due to a conviction by a civil court with a discharge UOTHC. He had completed 3 months and 21 days of creditable active service and had 179 days of lost time.
Army Regulation 635-206, then in effect, stated that soldiers convicted of a civilian offense, which offense under the UCMJ could result in punitive discharge, would be considered for an administrative discharge under the provisions of that Army Regulation.
There is no evidence in the applicants record 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
5 October 1964, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 5 October 1967.
The application is dated 15 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
ARMY | BCMR | CY2005 | 20050004463C070206
However, the evidence does include a properly constituted DD Form 214 that shows on 23 February 1965, the applicant was separated under the provisions of Section III, Army Regulation 635-206, by reason of misconduct and that he received an undesirable discharge. There is no indication that the applicant applied to the Army Discharge Review Board of an upgrade of his discharge within its 15-year statute of limitations. In order to justify correction of a military record the applicant...
ARMY | BCMR | CY2005 | 20050017602C070206
The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to honorable or general. On 2 December 1964, he was tried, convicted, and sentenced to 4 years confinement. There is no evidence of record that the applicant applied for a discharge upgrade to the Army Discharge Review Board within it's 15-year statute of limitations.
ARMY | BCMR | CY2006 | 20060010040C070205
Accordingly, the applicant was discharged on 31 October 1966 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court. 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. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.
ARMY | BCMR | CY2005 | 20050008707C070206
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant’s record shows he enlisted in the Regular Army and entered active duty on 29 September 1962. The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time.
ARMY | BCMR | CY2009 | 20090015927
The applicant requested consideration of his case by a board of officers to determine if he should be discharged. When such separation was warranted, an undesirable discharge was considered appropriate. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2009 | 20090004628
On 28 October 1968, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, for Civil Conviction, with an undesirable discharge. The available evidence shows the applicant was recommended for discharge with an undesirable discharge by reason of civil conviction. The available evidence also shows the applicant was in civil confinement during the processing of his separation as he had been sentenced to 1 1/2 to 4 years and he was confined...
ARMY | BCMR | CY2005 | 20050003414C070206
Carol Kornhoff | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. On 7 June 1974, the separation authority approved the recommendation of the board of officers that the applicant be discharged from the service because of conviction by a civil court under the provisions of Army Regulation 635-206 with issuance of an undesirable discharge. He completed 1 year, 1 month and 12 days active military service with 1,000 days of lost...
ARMY | BCMR | CY2007 | 20070019041
Application for correction of military records (with supporting documents provided, if any). Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. The applicant's records show that he received five Article 15s, he was convicted by two special courts-martial, he was AWOL on three occasions, and had two instances of military confinement and one civil confinement during his enlistment.
ARMY | BCMR | CY2001 | 2001063023C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board considered the following evidence: He had 1 year, 3 months and 16 days of active military service.
ARMY | BCMR | CY1996 | 9606803C070209
On 9 December 1971, the applicant was notified that the commander was recommending a discharge under the provisions of Army Regulation 635-206 for fraudulent entry, and that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration term of his service. On 8 February 1972, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-206 for fraudulent entry with a discharge...