APPLICANT REQUESTS: That his discharge under conditions other than honorable be changed to a general discharge. He states that he has cancer, does not have long to live, is on disability, and would like to have his discharge changed to under honorable conditions.
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:
The applicant enlisted in the Army on 20 April 1971, completed training and was assigned to Fort Lee, Virginia. In October 1971 he was assigned to Fort Bliss, Texas.
The applicant was AWOL from 18 April to 10 May 1972.
On 30 May 1972 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He made a statement to the effect that he went AWOL on 17 April 1972 and did not intend to return to his unit or the Army. On the 23d of April he went to Fort Benjamin Harrison, Indiana, prepared a statement in order to receive a mid month pay in the amount of $85.00. He stated that he did not think anything was wrong in doing this, because he had the pay due. He then went to Fort Lee Virginia, turned himself in to the military police, and returned to Fort Bliss.
The applicants commanding officer recommended that the applicants request be approved and that he be issued a general discharge.
A 1 June 1972 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile series of 1 1 1 1 2 1. In the report of medical history he furnished for the examination the applicant stated that his health was good.
A 1 June 1972 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. He met the medical standards for retention in the Army.
The applicants battalion commander stated that the applicant had been counseled by him on three occasions, that the applicant was immature and demonstrated a serious lack of common sense. That official stated that the applicant had told him that he fraudulently entered the Army by signing his mothers name to an enlistment document, and that upon his return from AWOL on 11 May 1972 told that official how he received an $85.00 casual payment. That official stated that he had him confined, and that he was the most unstable and immature solider he had known. He recommended that the applicant be issued an Undesirable Discharge Certificate.
On 8 June 1972 the separation authority approved the applicants request and directed that he be furnished an Undesirable Discharge Certificate.
The applicant was discharged on 13 June 1972. He had
1 year, 1 month, and 1 day of service and 23 days of lost time.
On 12 July 1977 the applicant was informed by the Army Discharge Review Board that he was properly discharged, and that his request for a change in the type and nature of his discharge under the DOD Discharge Review Program (Special) had been denied.
On 7 August 1987 the Army Discharge Review Board, in an unanimous opinion, denied the applicants request to upgrade his discharge.
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.
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
7 August 1987, the date the Army Discharge Review Board denied his request to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 August 1990.
The application is dated 20 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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