APPLICANT REQUESTS: In effect, that his under honorable conditions discharge be changed 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 entered active duty in June 1969 for two years and received training at Fort Polk, Louisiana. While there he was AWOL on three occasions and received one summary court-martial and one special court-martial. He arrived in Vietnam in August 1970. On 31 December 1970 his commander recommended he be discharged for unfitness under Army Regulation 635-212 due to frequent acts of misconduct and refusal to perform duty as directed. Initially, applicant requested his case be considered by a board of officers; subsequently he waived that right. He was discharged on 15 February 1971.
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. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
On 18 July 1972 the Army Discharge Review Board (ADRB) denied the applicants request for upgrade of his discharge.
On 21 July 1977 the ADRB upgraded the applicants discharge to general under the provisions of the Discharge Review Program (Special).
On 10 August 1978 the ADRB considered the applicants service under the provisions of Public Law 95-126 and declined to upgrade his discharge.
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 the date of the last ADRB review. The time for the applicant to file a request for correction of any error or injustice expired on 10 August 1981.
The application is dated 7 February 1996 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
ARMY | BCMR | CY1997 | 9711465
: The applicant’s military records show:He was born on 2 June 1949. On 10 July 1969, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 3 - 8 July 1969. On 28 July 1970, the applicant was discharged, with a discharge UOTHC , in pay grade E-1, under the provisions of Army Regulation 635-212.
ARMY | BCMR | CY2011 | 20110017691
The applicant requests an upgrade of his undesirable discharge to an honorable discharge. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions. Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 9 August 1964 and 28 March 1973, inclusive.
ARMY | BCMR | CY1996 | 9606509C070209
APPLICANT REQUESTS: In effect, the applicant requests that his undesirable discharge be upgraded to honorable. 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. 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.
ARMY | BCMR | CY1996 | 9610405C070209
On 25 April 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness (frequent incidents of a discreditable nature with civil or military authorities), with a discharge UOTHC. 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...
ARMY | BCMR | CY2010 | 20100007381
The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions. Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions. The ADRB upgraded the applicants discharge from under other than honorable conditions to general under honorable conditions under the DOD SDRP on 16 February 1978...
ARMY | BCMR | CY2005 | 20050000744C070206
The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. The applicant’s contentions have been noted by the Board and...
ARMY | BCMR | CY2004 | 20040004087C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 March 2005 DOCKET NUMBER: AR20040004087 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. Evidence of record further show that he waived consideration of his case by a board...
ARMY | BCMR | CY2011 | 20110005542
The applicant requests that his undesirable discharge be upgraded to a general discharge or that his discharge be changed to show he was discharged by reason of service-connected physical disability. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an...
ARMY | BCMR | CY2002 | 2002073312C070403
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. The applicant requests correction of military records as stated in the application to the Board and as restated herein. For those who elected to earn a...
ARMY | BCMR | CY2013 | 20130003856
IN THE CASE OF: BOARD DATE: 7 November 2013 DOCKET NUMBER: AR20130003856 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 26 September 1970, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.