APPLICANT REQUESTS: That his undesirable discharge be upgraded.
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 enlisted on 15 February 1973 and completed training as an infantryman.
On 4 March 1974 he was barred from reenlistment for misconduct although the details are not available. On
1 April 1974 he went AWOL and during this time he was arrested in Logan, West Virginia for possession of a controlled substance. The judge in Logan, West Virginia sentenced the soldier to 6 months in jail but suspended the sentence.
Once he was under military control at Fort Meade, MD,
court-martial charges were preferred for AWOL from 1 April to 1 July 1974. The applicant acknowledged that he was guilty and that he understood the nature and consequences of the other than honorable discharge which he might receive. He requested discharge for the good of the service in lieu of trail by court-martial. At the 11 July 1974 separation medical examination the examining physician considered the applicants medical record and that he stated none and no meds on the medical history he provided. The applicant was found fit for separation. The separation authority approved the applicants request and directed that an undesirable discharge certificate be issued. He had 1 year 3 months
11 days creditable service and 91 days lost time.
On 29 June 1976 the Army Discharge Review Board (ADRB, in a unanimous decision, denied the applicants request to change the character of the 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 Boards 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
29 June 1976, the date of the ADRB review. The time for the applicant to file a request for correction of any error or injustice expired on 29 June 1979.
The application is dated 6 March 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:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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