APPLICANT REQUESTS: That his undesirable discharge be upgrade to honorable. He state that due to the events at hand, no man would be able to adjust to military service. He notes a review of his records will show that individuals with rank, should not be allowed to have such impact on a young soldiers life.
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 on 7 November 1979. In February 1980 while undergoing training as a petroleum supply specialist he was relieved from the course for lack of motivation. The applicant was ultimately assigned as a cook at Fort Jackson, South Carolina.
On 7 August 1980 he was punished under Article 15, UCMJ for being AWOL and for willfully breaking a window in order to injure himself to avoid duty.
In October 1980 the applicant was cited with four counts of failing to be at his appointed place of duty, one count of threatening to do bodily harm to another individual, one count of striking a woman in the chest with a door, and disrespect to a senior officer.
On 12 November 1980, after charges were preferred for the above offenses, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. He did not submitted any statements on his own behalf.
A mental health evaluation, conducted on 17 November 1980, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal. It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.
On 18 November 1980 the separation authority approved the request and directed that an undesirable discharge be issued. The applicant was separated on 24 November 1980 under the provisions of Army Regulation 635-200, chapter 10. He had 1 year and 16 days of creditable.
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 under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
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 24 November 1980, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 24 November 1983.
The application is dated 5 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
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