APPLICANT REQUESTS:  That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.  He states that he was 17 at the time of service.  He is now more mature.  He indicated that he would submit evidence at a later date, but none has been received.

COUNSEL REQUESTS:  Counsel filed no contentions.

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 and medical records show:

He was born on 1 December 1959.  He completed 10 years of formal education.  On 23 December 1976, he enlisted in the U.S. Army Reserve, in pay grade E-1, for 6 years.  On 18 January 1977, he enlisted in the Regular Army, in pay grade E-1, for 3 years.  His Armed Forces Qualification Test score was 37 (Category III).  He completed his required training and was awarded military occupational specialty 63C10 (Track Vehicle Mechanic).

On 9 May 1977, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties in that he was asleep while on duty as a charge of quarters runner.  His imposed punishment was a forfeiture of $75 pay for 1 month and restriction for 7 days.  He did not appeal.

He was advanced to pay grade E-2 effective 18 July 1977.

On 17 August 1977, he received NJP under Article 15, UCMJ, for violating a lawful general regulation by driving a Government vehicle without a Government license.  His imposed punishment was a forfeiture of $50 pay for 1 month (suspended for 60 days), 7 days duty in the 1st Cavalry Division Correctional Custody Facility, and 7 days extra 



duty.  He did not appeal.  On 3 September 1977, the suspension of the punishment of a forfeiture of $50 pay for 1 month was vacated, and the unexecuted portion of the punishment was ordered to be executed.

A Report of Investigation Line of Duty and Misconduct Status, dated 26 August 1977, indicated that the applicant received an injury (bruise on his head) while resisting arrest; that he was intoxicated, belligerent, and abusive both in verbiage and in physical contact; that he disobeyed the club manager’s request that he depart the premises; that he repeatedly disobeyed military police instructions; and that, since the applicant was intoxicated at the time of the incident, the findings were not in line of duty-due to own misconduct.  The findings were approved on 9 November 1977.

On 5 December 1977, the applicant, after pleading guilty, was convicted by a special court-martial (SPCM) for being absent without leave (AWOL) from 6 October 1977 to 7 October 1977, 11 October 1977 to 18 October 1977, 19 October 1977 to 21 October 1977, and 7 November 1977 to 21 November 1977.  He was found guilty and sentenced to be reduced to the grade of private (E-1), a forfeiture of $265 pay for 1 month, and to be confined at hard labor for 30 days.  On 20 December 1977, his sentence was approved.

The applicant’s DA Form 2-1 (Personnel Qualification Record-Part II) indicates that the applicant was reassigned from Fort Hood, Texas, to the U.S. Army Retraining Brigade (USARB), Fort Riley, Kansas, on 21 December 1977.

On 23 December 1977, the applicant was interviewed by a Medical Service Corps officer for training program participation.  He opined that the applicant was a 
self-centered individual who was very guarded during the interview; that the applicant had high expectations but did not work to reach those goals and thought that they were his due; that the applicant did not understand that promotion was not coming to somebody just for being in the Army but that he had to work hard for it and stay out of trouble; that the applicant wanted to be returned to duty; and that 
the applicant was cleared of any severe conditions under chapter 13, Army Regulation 635-200, which would cause a discharge recommendation of personality disorder.

On 10 January 1978, he received NJP under Article 15, UCMJ, for being absent from his unit from on or about 1700 hours, 8 January 1978, to on or about 1920 hours, 8 January 1978.  His imposed punishment was 14 days extra duty and restriction for 14 days.  His appeal was denied.

On 16 January 1978, he received NJP under Article 15, UCMJ, for disobeying a lawful order issued by a noncommissioned officer (NCO) (a staff sergeant) to go to bed, for disobeying a lawful order issued by a NCO (a sergeant first class (SFC)) to fall outside for fire drill formation, and for disobeying a lawful order issued by a NCO (a SFC) not to bring contraband into the unit area.  His imposed punishment was a forfeiture of $75 pay for 1 month.  He did not appeal.

On 17 January 1978, he received NJP under Article 15, UCMJ, for disobeying a lawful command from his superior commissioned officer to sign in every hour on the hour.  His imposed punishment was 14 days extra duty and restriction for 14 days.  He did not appeal.

On 17 January 1978, his commander submitted a request through the battalion commander to the Chief, Trainee Administration, recommending that the applicant be discharged from the service by reason of misconduct for frequent incidents of a discreditable nature.  His commander indicated that the applicant had received five NJP’s (three while at the USARB) and one SPCM.  Also, he included a resume of the attitude, conduct, performance, and discreditable actions of the applicant during the period 9 May 1977 through 15 January 1978.  Besides the five NJP’s, the vacation of suspension of a NJP, and one SPCM, the resume indicated that his unit commander’s observation was that the applicant had no potential for return to duty, that he had failed to comply on six occasions, that he disturbed chapel service; that he had contraband under his sheets; that he failed to wear a raincoat; that he failed to get off his bed promptly when told to do so; that he failed to shine 
his boots; that he refused to remain at parade rest; that he had poor motivation and attitude; that he was absent from formation; that he failed inspection (had three deficiencies); that he had marginal performance and required close supervision; that he was marginal; that his attitude and motivation were unsatisfactory; that he was a bad risk for return to duty; that performing routine duties on his own, attitude, response to orders, and motivation were unsatisfactory; that he was a poor risk due to attitude and had to be watched closely; that he disobeyed an order to secure his wall locker; that he disobeyed an order to be in bed 10 minutes after the first call on two occasions; that he disobeyed safety instructions by diving head first into the pool; that his team commander indicated that the applicant had a poor attitude and doubtful commitment to disciplined behavior; that he disobeyed a trainee leader by being disruptive in formation; and that he disobeyed a lawful command to sign in every hour on the hour during off duty time.

On 18 January 1978, the applicant was advised by consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under chapter 13, Army Regulation 635-200, and its effect, and the effect of waiving his rights.  The applicant waived consideration, personal appearance, and representation by counsel before a board of officers.  He acknowledged that he understood that, as the result of issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  The applicant submitted a statement in his own behalf indicating, in effect, that he felt that “he had put in to the best of his ability as a soldier;” that he was AWOL because he didn’t receive some of his hard earned checks; that he was trying to maintain and not go AWOL again; that he had bills to pay too; that he felt that he had gotten himself in deep enough; that he was going to stick with this and hope for the best; that he had learned from his mistakes; and that he was hoping for a better discharge than he was getting.

On 18 January 1978, the applicant’s commander officially recommended that the applicant be discharged under paragraph 13-5, Army Regulation 635-200, for misconduct because of frequent incidents of a discreditable nature;  He indicated that the applicant’s conduct and efficiency were unsatisfactory; that the applicant was sent to the USARB for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained soldier with improved attitude and motivation; that the applicant’s actions since arrival precluded accomplishment of the objective; that the applicant demonstrated little desire for returning to duty; that the applicant had received counseling by members of the leadership team and members of the professional staff agencies; that the applicant had not responded favorably to this counseling nor from duties given him; that, in his opinion, the applicant possessed the mental and physical ability necessary to be an effective soldier, but his record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service; and that the applicant did not meet the criteria for further rehabilitation attempts.

On 18 January 1978, the battalion commander forwarded the request for the applicant’s discharge recommending approval. Subsequently, the USARB commander approved the applicant’s discharge under chapter 13, Army Regulation 635-200, with a discharge UOTHC.

The applicant’s DD Form 214 (Report of Separation from Active Duty) indicates that he was discharged on 1 February 1978, in pay grade E-1, under paragraph 13-5a(1), Army Regulation 635-200, with a discharge UOTHC; that he had completed 10 months and 5 days active service; that he had 69 days time lost; and that he had received the “Marksmanship Quality Badge (Rifle M-16)” and “1st Class Quality Badge (Hand Grenade).”

Army Regulation 635-200, at paragraph 13-5a(1), then in effect, provided for the separation of enlisted personnel by reason of unfitness due to frequent incidents of a 

discreditable nature with civil or military authorities.  An individual separated by reason of unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his case.

Army Regulation 635-200, at chapter 14, effective 1 February 1978, provided for the elimination of enlisted personnel for misconduct.  It provided, in pertinent part, that patterns of misconduct included frequent incidents of a discreditable nature with civil or military authorities.  An under other than honorable discharge certificate was normally appropriate for a member who was discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge, if such was merited by the member’s overall record.

There is no evidence that the applicant made any effort to have the alleged error or injustice corrected prior to this application.

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 1 February 1978, the date that the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 1 February 1981.

The application is dated 3 April 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