APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) 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 31 August 1949. He completed 11 years of formal education. On 26 January 1968, the applicant was inducted into the Army of the United States for 2 years. He completed the required training and was awarded military occupational specialty 11B10 (Light Weapons Infantryman).
On 30 April 1976, court-martial charges were preferred against the applicant for being absent without leave from
9 December 1968 to 23 April 1976.
On the same day, a medical and a mental examination found the applicant medically fit for retention.
On 4 May 1976, 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 May 1976, the appropriate authority approved his request and directed the issuance of a discharge UOTHC.
On the same day, 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 11 months and 2 days of creditable active service and had 2,696 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. 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 14 May 1976, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 14 May 1979.
The application is dated 11 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
ARMY | BCMR | CY1997 | 9709410
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. 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...
ARMY | BCMR | CY1997 | 9709410C070209
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. 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...
ARMY | BCMR | CY2004 | 20040008448C070208
The applicant requests, in effect, that his undesirable discharge be upgraded to honorable and that the reason for his discharge be changed. On 2 February 1976, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and that he be furnished an Undesirable Discharge Certificate. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by...
ARMY | BCMR | CY2014 | 20140007710
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 27 April 1976 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. ___________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2004 | 2004100347C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 October 2004 DOCKET NUMBER: AR2004100347 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. On 12 November 1976, the separation authority approved the applicant’s request for discharge and directed that he receive an undesirable discharge under the provisions of chapter 10, Army Regulation 635-200. Chapter...
ARMY | BCMR | CY2004 | 20040004926C070208
The application submitted in this case is dated 28 July 2004. On 19 July 1977, the applicant was separated with a UOTHC discharge. On 21 May 1980, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.
ARMY | BCMR | CY2005 | 20050003632C070206
The applicant requests that his records be corrected by upgrading his discharge to honorable. On 21 September 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less...
ARMY | BCMR | CY2004 | 20040010954C070208
The applicant requests that his discharge characterized as under other than honorable conditions (UOTHC) be upgraded. There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. There is no evidence, and the applicant has provided no evidence, upon which to base an upgrade of his UOTHC.
ARMY | BCMR | CY2005 | 20050017055C070206
The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. _____Lester Echols_______ CHAIRPERSON INDEX |CASE ID |AR20050017055 | |SUFFIX | | |RECON | | |DATE BOARDED...
ARMY | BCMR | CY1997 | 9710247
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 he 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. 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...