APPLICANT REQUESTS:  In effect, the applicant requests that his under other than honorable conditions discharge be upgraded to general or honorable.  He states that there were procedural errors in the Reserve board, to include lack of a quorum of voting members.   

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 has served in the Army as an enlisted soldier and in the Army Reserve as a second lieutenant.

The applicant claims that his military career included, voluntary non-uniform TDY and attachment to the Air Force, advisory classification with the Army of South Vietnam, advisory status with the Zairian Army, service as a special investigator for the National Security Agency, and various other investigative assignments (special auxiliary), to include the Central Intelligence Agency.  He claims to have been known under two different names, and was both a regular Army enlisted soldier and a regular Army officer with the rank of lieutenant colonel.  The applicant claims to have been a warrant officer helicopter pilot who flew missions in Cambodia.  He claims to have participated in covert operations in Angola and other parts of Africa.  At one time he claimed to have been promoted to gold bar captain, the gold bars signifying two awards of the Medal of Honor.

The applicant entered the Army on 16 March 1970.  On 
2 June 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty.  He was released from active duty with an honorable characterization of service in the grade of E-5 on 
26 January 1972.  He had 1 year, 10 months, and 11 days of service.

He reenlisted on 31 July 1974.  On 20 February 1976 the applicant received nonjudicial punishment for failure to go to his place of duty.  He was discharged with an honorable characterization of service in the grade of E-4 on 
29 July 1977.  He had 2 years, 11 months, and 29 days of service during this period of enlistment; 1 year, 
10 months, and 11 days from his previous period of active service; and 2 years, 6 months, and 4 days of prior inactive service.

On 6 September 1978 the applicant enlisted in the Reserve as an ROTC cadet.

The applicant was appointed a second lieutenant in the Reserves and assigned to a Reserve infantry unit in Philadelphia effective 7 April 1980.
 
On 16 April 1992 elimination proceedings were initiated against the applicant under the provisions of Army Regulation 135-175, paragraph 2-12, for professional dereliction.  On 12 September 1982 a board of officers met to determine if the applicant should be retained in the Reserves.  The board was composed of three voting members, a Reserve lieutenant colonel, a Regular Army major, and a Reserve captain (recorder with vote); a major, legal advisor; and a Captain, defense counsel.  The report of proceedings indicates that the applicant failed to appear before the board.  The board found that the applicant failed to attend all military functions from July 1980 to March 1981 and afterwards, and as such intentionally neglected and failed to perform assigned duties; that he intentionally neglected or failed to participate in required reserve training; and that he did intentionally neglect to furnish his address of record.  The board recommended that he not be retained in the Reserves and that he be furnished a discharge certificate Under Other Than Honorable Conditions. The board recommendations were approved by the convening authority on 19 October 1982, and by the separation authority on 22 December 1982. 

The applicant was discharged under other than honorable conditions on 31 December 1982.  His discharge certificate shows his grade as second lieutenant.  

On 14 October 1983 the applicant enlisted in the Army Reserve delayed entry program for three years in the pay grade of E-2.  He was discharged from that program and enlisted in the Army for three years on 2 November 1983.
On 2 November 1983 the Philadelphia Military Entrance Processing Station assigned the applicant to Fort Benning, Georgia for advanced infantry training.

A 27 January 1984 psychiatric report indicates the 
applicant’s condition was diagnosed as malingering versus schizophreniform disorder, narcissistic personality disorder with paranoid personality traits, schizotypal personality traits, and schizoid personality traits. 

A 13 February 1984 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 he furnished for the examination, the applicant stated that he was in good health. 

On 28 February 1984 the applicant’s commanding officer recommended that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 7-17, due to fraudulent entry because of failure to disclose all prior service (discharged under other than honorable conditions on 31 December 1982).

On 19 March 1984 the applicant received nonjudicial punishment for assault.  On 30 May 1984 he received nonjudicial punishment for disrespect to an NCO.

On 31 May 1984 a board of officers met to determine if the applicant should be discharged from the Army.  The applicant was present and represented by counsel.  The board heard testimony and found that the applicant did fraudulently enlist in the Army by concealing his prior service and that he was undesirable for further retention in the Army.  The board recommended that he be discharged under other than honorable conditions.

The separation authority approved the recommendation of the board and directed that the applicant receive an other than honorable discharge certificate.  The applicant was discharged on 3 August 1984.  He had 9 months and 2 days of service during this, his latest period of enlistment.   

On 8 August 1988 the Army Discharge Review Board notified the applicant that his request to upgrade his discharge from the Reserves had been denied.
  
Army Regulation 135-175, then in effect, prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Paragraph 2-12 authorizes elimination of an officer due to moral or professional dereliction, which includes intentional neglect or failure to perform assigned duties, participate in required Ready Reserve training, and furnishing a current address of record.  Officers discharged may be furnished an Honorable, General, or Other Than Honorable Discharge Certificate. 

Paragraph 2-25 of the aforementioned regulation provides for the composition of boards of officers to determine if officers will be retained in the Army, and states, in effect, that boards will be composed of commissioned officers, all of whom must be of equal or higher grade and senior in rank to the officer under consideration for elimination; one of the members present will be a Regular Army officer, and the remaining members will be Reserve officers who are on active duty or in an active Reserve status.  It goes on to say that when a recorder is not designated in the appointing letter, the junior member of a board will act as recorder and will have a vote, and that an uneven number of officers (3 or more) will constitute a quorum. 

Army Regulation 635-200 sets forth the basic authority
for the separation of enlisted personnel.  Chapter 7
establishes policy and prescribes procedures for
separating members for defective enlistments,
reenlistments and extensions.  Paragraph 7-17 provides
for separation for fraudulent entry of an individual who
obtains a period of service by misrepresentation,
concealment or omission of information which, if known,
might have resulted in rejection.  Such information
includes periods of prior service, true citizenship,
civil conviction, records as a juvenile offender,
concealment of medical defects, AWOL or desertion during
a period of prior service, pre-service homosexuality,
misrepresentation with regard to legal custody of
children and concealment of other disqualifications. 
Soldiers discharged under chapter 7 may be issued an
honorable discharge, a general discharge or discharge
under other than honorable conditions as is determined
to be 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 
8 August 1988, the date the Army Discharge Review Board notified the applicant that his request to upgrade his discharge had been denied.  The time for the applicant to file a request for correction of any error or injustice expired on 8 August 1991.

The application is dated 21 December 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