APPLICANT REQUESTS: In effect, the applicant requests that his undesirable discharge be upgraded to honorable. He states that he did his duty by enlisting and serving in Vietnam and received an honorable discharge after three years. He reenlisted for four years and served honorably for at least two years.
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 enlisted in the Army on 22 May 1967, completed training and in January 1968 was assigned to a signal unit in Vietnam. He completed his tour and returned to the United States at Fort Hood, Texas in March 1969. He participated in five campaigns while in Vietnam.
On 23 May 1969 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to obey a lawful order.
The applicant was honorably discharged on 27 January 1970 for the purpose of immediate reenlistment and was assigned to an armored battalion in Germany.
On 9 September 1970 the applicant received nonjudicial punishment for communicating a threat to an officer.
On 2 April 1971 the applicant was arraigned, tried, and found guilty by a summary court-martial for wrongful possession of heroin.
On 12 August 1971 he received nonjudicial punishment for disobedience of an order and for assaulting a fellow soldier. He received nonjudicial punishment on
7 January 1972 for absenting himself from his unit; again on 8 February 1972 for absenting himself from his unit and disobedience of a lawful command.
On 10 February 1972 the applicants commanding officer initiated action to discharge the applicant for unfitness under the provisions of Army Regulation 635-212. The applicant consulted with counsel, stated that he understood the basis for the contemplated action, and the nature and consequences of the undesirable discharge that he might receive. He elected not to make a statement in his own behalf.
A 16 February 1972 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination he stated that he was in good health.
A report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to participate in board proceedings, and met the medical standards for retention in the Army.
On 12 March 1972 the applicants commanding officer recommended to the separation authority that the applicant be discharged and that he receive an Undesirable Discharge Certificate. On 1 May 1972 the separation authority approved the recommendation.
The applicant was discharged on 4 May 1972 at Fort Dix, New Jersey. He had 4 years, 11 months, and 13 days of service.
In June 1979 the Army Discharge Review Board denied the applicants request to upgrade his discharge.
Army Regulation 635-212, in effect at the time, set forth
the basic authority for the elimination of enlisted
personnel. Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents
of a discreditable nature with civil or military
authorities; sexual perversion including but not limited
to lewd and lascivious acts, indecent exposure, indecent
acts with or assault on a child; drug addiction or the
unauthorized use or possession of habit-forming drugs or
marijuana; an established pattern of shirking; and an
established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents
(including failure to comply with orders, decrees or
judgments). When separation for unfitness was
warranted an undesirable discharge was 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. 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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
30 June 1979, the last day of the month in which the Army Discharge Review Board denied his request to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired on
30 June 1982.
The application is dated 5 February 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
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