APPLICANT REQUESTS: The applicant requests In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded. The applicant states, in effect, that his discharge was improper, because it was based on one isolated incident and situation, which was radically escalated, due to his state of mind.
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 24 January 1959. He completed 9 years of formal education. On 17 September 1978, the applicant enlisted in the Regular Army for 4 years. His Armed Forces Qualification Test score was 80 (Category II). He completed the required training and was awarded military occupational specialty 64C10 (Heavy Vehicle Driver). The highest grade completed was pay grade E-3.
On 19 January 1977, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order. His imposed punishment was a forfeiture of $50 pay and 7 days in a correctional custody facility.
On 6 June 1977, the applicant accepted an NJP, under Article 15, UCMJ, for being absent without leave (AWOL) from 23 to
29 May 1977. His imposed punishment was a reduction to pay grade E-1, a forfeiture of $50 pay, 14 days restriction and extra duty.
On 15 August 1978, court-martial charges were preferred against the applicant for being AWOL from 11 April to
10 August 1978.
On 22 August 1978, a medical examination found the applicant medically fit for retention.
On 2 September 1978, 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 6 September 1978, the appropriate authority approved his request and directed the issuance of a discharge UOTHC. On
8 September 1978, 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 1 year, 6 months and 27 days of creditable active service and had 128 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 in the applicants Official Military Personnel File in support his allegations.
On 3 June 1980, 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
3 June 1980, 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 3 June 1983.
The application is dated 28 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
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