APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge.
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 was born on 11 June 1949. He completed 10 years of formal education. On 4 January 1968, the applicant enlisted in the Regular Army for 2 years. His Armed Forces Qualification Test score was 53 (Category III). He completed the required training and was awarded military occupational specialty 76A10 (Supply Clerk). On 4 September 1968, he was honorably discharged in pay grade E-3, after serving 8 months and 1 day of active military service. On
5 September 1968, the applicant reenlisted for 4 years.
On 12 July 1970, while assigned to a unit at Fort Benning, Georgia, the applicant was reported for being absent without leave (AWOL). He was returned to military control on
12 November 1973.
On 14 November 1973, court-martial charges were preferred against the applicant for being AWOL from 12 July 1970 to
11 November 1973.
On 21 November 1973, a physical and a mental status examination cleared the applicant for separation.
On 2 January 1974, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf, but declined to do so.
On 14 January 1974, the appropriate authority approved his request and directed the issuance of a UD. On 7 February 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a UD. He had completed 1 year,
11 months and 4 days of creditable active service and had 642 days of lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UD is normally considered appropriate.
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
7 February 1974, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 7 February 1977.
The application is dated 19 January 1994, 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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