APPLICANT REQUESTS: That his discharge for unsatisfactory performance be corrected to a medical discharge. He states that he had fractured his nose in 1982 and had injured his lower back in 1983. Those injuries resulted in his being given physical profile limitations, bed rest and the recommendation for surgery. He continues that he has been awarded a combined rating of 20 percent disabled by the Department of Veterans Affairs (DVA).
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:
He enlisted in the Regular Army on 6 January 1981 and was awarded the military occupational specialty of infantryman.
On 9 December 1992 the applicant's commander recommended his discharge for unsatisfactory performance. That recommendation was based on his acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ, on four occassions, and on his conviction by a summary
court-martial. The applicant had been afforded the rights that are provided to a soldier being considered for involuntary separation and had waived those rights.
The applicant was given a separation physical examination and was found to be medically qualified for retention without any profile limitations. On that report of examination he himself wrote
That recommendation was approved by the appropriate authority and the applicant was given a General Discharge Certificate on 22 March 1984 in pay grade E-3 under the authority of Army Regulation 635-200, chapter 13, unsatisfactory performance. His DD Form 214 shows he completed 3 years, 2 months and 14 days of creditable service and had 3 days of lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
RE-3 indicates that a person was not qualified for continued Army service, but the disqualification is waivable. Persons separated for unsatisfactory performance are assigned a code of RE-3. However, under today's standards, the Department has imposed strict enlistment standards to meet the reduced demands of the Army and a very limited number of waivers are being granted.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:
1. Failing evidence that the applicant was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, the alcoholism issue does nothing to demonstrate an injustice in the discharge. The Board rejects the implication that intemperate use of alcohol necessarily mitigates both itself and the effects thereof.
2. The discharge proceedings were conducted in accordance with applicable law and regulations. The character of the discharge is commensurate with the applicant's overall record of military service as is his RE code.
3. While it is commendable that the applicant has identified his problem with alcohol and has restored himself to a dependable and respectful citizen, that in itself is not grounds for changing a correctly issued RE code.
4. In view of the foregoing there is no basis for granting the applicants request.
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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.
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.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the ***. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on , the date . The time for the applicant to file a request for correction of any error or injustice expired on .
The application is dated 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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