Search Decisions

Decision Text

ARMY | BCMR | CY1996 | 9605695C070209
Original file (9605695C070209.TXT) Auto-classification: Denied
APPLICANT REQUESTS:  In effect, the applicant requests that his bad conduct discharge be upgraded to honorable or general.  He states, in effect, that he was a minor and that his counsel was inadequate.  

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 was 17 years old when, with the consent of both parents, he enlisted in the Army for two years on 
7 August 1974.  He completed basic training and was assigned to Fort Gordon, Georgia in November 1974 for advanced training.

On 17 December 1974 the applicant was placed in pre-trial confinement for assaulting a soldier and for robbing a post exchange.  On 26 December 1974 he requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  On 30 January 1975 the separation authority disapproved his request.

On 20 February 1975 the applicant was arraigned and tried by a general court-martial.  He pled guilty to unlawfully entering a concession of the post exchange with the intent to commit larceny, larceny, and assault.  The applicant was sentenced to a bad conduct discharge, forfeiture of $200.00 per month for nineteen months, and confinement for nineteen months.  The applicant was confined at the disciplinary barracks at Fort Leavenworth, Kansas.  He was released on parole on 
14 November 1975.

On 20 January 1976 the Court of Military Appeals denied the applicantÂ’s petition for review of his case.

The applicant was discharged on 14 April 1976.  He had 
4 months and 3 days of service and 485 days of lost time.
   
The maximum sentence authorized by the Manual for Courts-Martial based on the findings of guilty for the charged 

offenses is a dishonorable discharge, confinement for 
10 years and 6 months, and forfeiture of all pay and allowances.

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 
14 April 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 April 1979.

The application is dated 18 December 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

Similar Decisions

  • ARMY | BCMR | CY2006 | 20060001054C070205

    Original file (20060001054C070205.doc) Auto-classification: Denied

    On 10 March 1975, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties. On 27 April 1979, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable or general discharge. As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 26 April 1982.

  • ARMY | BCMR | CY2008 | 20080007413

    Original file (20080007413.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 14 August 2008 DOCKET NUMBER: AR20080007413 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. United States Army Court of Military Review, dated 29 July 1976, shows that the findings of guilty were affirmed but the court affirmed only so much of the approved sentence as provides for a bad conduct discharge and confinement for 30 days. __________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army...

  • ARMY | BCMR | CY2007 | 20070005142

    Original file (20070005142.txt) Auto-classification: Denied

    Item 21 (Time Lost), of his DA Form 2-1, shows that he was confined from 5 April 1976 to 13 July 1976 (100 days); was AWOL from 30 July 1976 to 8 August 1976 (10 days); was AWOL from 6 September 1976 to 16 September 1976 (11 days) and was AWOL from 2 December 1976 to 5 December 1976 (4 days). There is no evidence in the applicantÂ’s records and the applicant has provided none, to show that he applied to the ADRB (Army Discharge Review Board) for an upgrade of his discharge within its 15-year...

  • ARMY | BCMR | CY2011 | 20110019363

    Original file (20110019363.txt) Auto-classification: Denied

    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. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. ; b. Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued...

  • ARMY | BCMR | CY2008 | 20080019405

    Original file (20080019405.txt) Auto-classification: Denied

    He was told his discharge would be under honorable conditions because the other persons involved were the ones who did the stealing. On 23 January 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for stealing personal property of another Soldier valued at $20.00. Special Court-Martial Order Number 21, Headquarters, III Corps and Fort Hood, Texas, dated 19 July 1977, provided that the sentence to a bad...

  • ARMY | BCMR | CY2004 | 20040011277C070208

    Original file (20040011277C070208.doc) Auto-classification: Denied

    Accordingly, the applicant was discharged with a bad conduct discharge on 17 December 1976 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial. Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court- martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or...

  • ARMY | BCMR | CY2010 | 20100014185

    Original file (20100014185.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 30 November 2010 DOCKET NUMBER: AR20100014185 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). The applicant requests that his Dishonorable Discharge (DD) be upgraded to an Honorable Discharge (HD).

  • ARMY | BCMR | CY2010 | 20100009903

    Original file (20100009903.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 30 September 2010 DOCKET NUMBER: AR20100009903 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Conviction and discharge were effected in accordance with applicable law and regulations, and the applicant's discharge appropriately characterizes the misconduct for which he was convicted. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

  • ARMY | BCMR | CY2009 | 20090014704

    Original file (20090014704.txt) Auto-classification: Denied

    The applicant requests that his bad conduct discharge be upgraded to an under honorable conditions (general) discharge. At the time of his discharge he had completed 3 years, 10 months, and 28 days of net active service during the period of service under review. After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

  • ARMY | BCMR | CY2012 | 20120021945

    Original file (20120021945.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 16 July 2013 DOCKET NUMBER: AR20120021945 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Special Court-Martial Order Number 54, Headquarters, 7th Infantry Division, Fort Ord, dated 21 July 1976, shows the sentence to a bad conduct discharge, a forfeiture of $240 pay for 4 months (forfeitures to apply to pay becoming due on or after the date of the convening authority's action), and reduction to the grade of private/E-1, adjudged on 9 October 1975, as promulgated...