APPLICANT REQUESTS: In effect, the applicant requests that his general discharge be upgraded to honorable. He states that he lost his discharge certificate and would like a replacement. He states that he should receive an honorable discharge because he served his country well. After he left the service, he continued to work for the government, becoming a national park ranger. He lost his left leg while on duty at Ellis Island, New York. He gave his country a part of him, which should atone for his earlier mistakes.
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 on active duty on 24 November 1975, completed training and was assigned to Fort Bragg, North Carolina.
On 1 December 1976 the applicant was arraigned, tried, and found guilty by a special court-martial for AWOL from
15 September to 19 October 1976.
On 29 March 1977 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go at the time prescribed to his place of duty.
On 7 June 1977 the applicant was arraigned, tried, and found guilty by a special court-martial for AWOL from
13-18 April 1977.
On 23 August 1977 the applicant received nonjudicial punishment for leaving his place of duty.
A 13 September 1977 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 3 1. In the report of medical history he furnished for the examination, the applicant stated that his health was GOOD.
A 13 September 1977 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. He met the medical standards for retention in the Army.
On 20 September 1977 the applicant again received nonjudicial punishment for leaving his place of duty.
On 7 October 1977 the applicants commanding officer initiated action to discharge the applicant from the Army under the provisions of Army Regulation 635-200, chapter 5 (Expeditious Discharge Program). That official stated that the reasons for his action was the applicants poor attitude, inability to adapt emotionally, and inability to accept instructions and directions. He informed the applicant that he was recommending that the applicant be furnished a General Discharge Certificate.
The applicant consulted with counsel, stated that he consented to the proposed discharge action, and declined to submit a statement in his own behalf. The applicant stated that he understood the nature and consequences of the general discharge that he might receive.
The applicants commanding officer recommended to the separation authority that the applicant be discharged and that he receive a General Discharge Certificate. The separation authority approved that recommendation and the applicant was discharged on 17 October 1977. He had 1 year, 7 months, 29 days of service and 43 days of lost time. The applicants DD Form 214 (Report of Separation from Active Duty) shows an erroneous date of 7 January 1976 as the date that he entered active duty.
Army Regulation 635-200 provides the policy and sets
forth the procedure for administrative separation of
enlisted personnel. Chapter 5, as then in effect,
provided, in pertinent part, for the Expeditious
Discharge Program (EDP). This program provided that an
individual who had completed at least 6 months, but less
than 36 months of active duty and who demonstrated (by
poor attitude, lack of motivation, lack of
self-discipline, inability to adapt socially or
emotionally or failure to demonstrate promotion
potential) that they could not or would not meet
acceptable standards could be separated. Such personnel
were issued a general or honorable discharge, as
appropriate, except that a recommendation for a general
discharge had to be initiated by the immediate commander
and the individual had to consult with legal counsel.
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
17 October 1977, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 17 October 1980.
The application is dated 15 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.
NOTE: The Army Reserve Personnel Center will be requested to issue the applicant a General Discharge Certificate to replace the one he lost and to issue him a corrected DD Form 214 to show the correct date he entered active duty.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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