APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.
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 28 March 1954. He completed 9 years of formal education. On 26 August 1971, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 40 (Category III).
On 9 September 1971, while in combat basic training, the applicant accepted nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for leaving his appointed place of duty without proper authority. His imposed punishment was a forfeiture of $31 pay.
The applicants military records indicates that he also accepted an NJP, under Article 15, UCMJ, for being absent without leave (AWOL) from 11 to 20 October 1971. However, particulars are missing from his files.
On 27 October 1971, a report of physical and mental status evaluation indicates that the applicant had no physical or mental defects sufficient to warrant separation through medical channels. That report also indicated that the applicant was mentally responsible, could distinguish right from wrong, and adhere to the right.
On 4 November 1971, the applicant was notified that his commander was recommending a discharge under the provisions of Army Regulation 635-212 for unfitness, frequent incidents of a discreditable nature with military or civilian authorities. The commanders recommendation was based on the applicants very strong desire to leave the Army in any manner possible, his negative and disruptive attitude toward military authority, his negative influence on other trainees, particularly, when he solicited several trainees in accompanying him in going AWOL, his false medical pretenses to avoid training, his poor personal hygiene and poor military bearing and his action which 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.
On 24 November 1971, the appropriate authority approved the recommendation and directed the issuance of a discharge UOTHC. On 29 November 1971, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-212, for unfitness with a discharge UOTHC. He had completed 3 months and 2 days of creditable active service, and
11 days of lost time.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge UOTHC was normally considered appropriate.
There is no evidence that the applicant applied to the Army Discharge Review Board for an 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
29 November 1971, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 November 1971.
The application is dated 8 November 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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