APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to a general 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 29 October 1955. He completed 10 years of formal education. On 5 February 1974, he enlisted into the Regular Army for 3 years. His Armed Forces Qualification Test score was 56 (Category III). He completed the required training and was awarded military occupational specialty 11B10 (Light Weapons Infantryman). The highest grade he achieved was pay grade E-2.
On 8 July 1974, the applicant was reported for being absent without leave (AWOL). On 14 July 1974, the applicantÂ’s military record indicates that he was tried and convicted by civil authorities for the illegal transportation of alcohol beverage. He was sentenced to confinement for 30 days and a fine of $121.50. On 30 July 1974, the applicant was returned to military control. On the same day the applicant escaped from military confinement. He was returned to military control on 7 October 1974.
On 10 October 1974, court-martial charges were preferred against the applicant for being AWOL from 31 July to
7 October 1974. On the same day, a medical examination found the applicant physically fit for retention.
On 11 October 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 1 November 1974, the appropriate authority approved his request and directed the issuance of a discharge UOTHC. On 25 November 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 discharge UOTHC. He had completed 7 months and 12 days of creditable active service and had 69 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 UOTHC is normally considered appropriate.
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. 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
25 November 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 25 November 1977.
The application is dated 17 October 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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