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 8 January 1944. On 12 May 1970, the applicant enlisted in the Regular Army for 2 years. His Armed Forces Qualification Test score was 31 (Category IV). He completed the required training and was awarded military occupational specialty 62B10 (Engine Equipment Repairer). The highest grade he achieved was pay grade E-2.
On 7 June 1971, the applicant was convicted by a summary court-martial of being absent without leave from 7 to
20 July 1970, from 24 July to 26 August 1970 and from
28 August 1970 to 5 January 1971. He was sentenced to confinement at hard labor for 14 days (suspended) and a reduction to pay grade E-1.
On 9 December 1971, the applicant was notified that the commander was recommending a discharge under the provisions of Army Regulation 635-206 for fraudulent entry, and that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration term of his service. The recommendation was based on the applicants concealment of his Naval Service, four civil convictions for offenses including disorderly conduct, assault and battery, escape from confinement and murder.
The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He was also 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. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so.
On 7 February 1972, the commanding general approved the recommendation and directed the issuance of a discharge UOTHC. On 8 February 1972, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-206 for fraudulent entry with a discharge UOTHC. He had completed 1 year and 3 months of creditable active service.
Army Regulation 635-206, then in effect, stated in pertinent part prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion were subject to separation for misconduct. When separation for misconduct was warranted a discharge UOTHC was normally considered appropriate.
On 20 March 1979, the Army Discharge Review Board denied the applicants request for an upgrade of 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 20 March 1979, the date the ADRB denied the applicants request. The time for the applicant to file a request for correction of any error or injustice expired on 20 March 1982.
The application is dated 29 January 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
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