APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable.
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 and entered on active duty on 1 April 1975. The applicant received numerous counseling statements for writing bad checks, poor performance and failure to report. The applicant received nonjudicial punishment (NJP) under Article 15 UCMJ on three occasions for offenses of AWOL, disrespect, and stealing. On 21 June 1976 the applicant acknowledged recommended elimination for frequent incidents of misconduct and for financial mismanagement. He consulted with counsel and waived his attendant rights. The separation authority approved the recommendation and directed that an undesirable discharge certificate be issued. On 6 August 1976 he was discharged with 1 year 4 months and 6 days active duty service.
On 25 May 1982 the Army Discharge Review Board,(ADRB) in a unanimous decision, denied the applicants request to change the character of the 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.
Army Regulation 635-200 sets forth the policy and
prescribes the procedures for administrative separation
of enlisted personnel. Chapter 13, in effect at that
time, applied to separation for unfitness and
unsuitability. When separation for unsuitability was warranted an honorable, general, or undesirable discharge was issued as determined by the separation authority based upon the individual's entire record.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 May 1982, the date of the ADRB decision. The time for the applicant to file a request for correction of any error or injustice expired on 25 May 1985.
The application is dated 18 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:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY2006 | 20060014515
On 25 June 1976, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an undesirable discharge. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 4 April 1985.
ARMY | BCMR | CY2003 | 2003085544C070212
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant has not presented and...
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However, his service record contains a DD Form 214 that shows he was discharged on 27 October 1976 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5a(1), for unsuitability, with an undesirable discharge in pay grade E-1. There is no evidence of record to show the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. Army Regulation 635-200,...
ARMY | BCMR | CY1996 | 9607036AC070209
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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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...
ARMY | BCMR | CY2004 | 20040008823C070208
Leonard G. Hassell | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant states that he had only just returned from Vietnam and was still on drugs, which made the discharge unjust at the time. The separation authority considered the case and directed that the applicant be separated with an undesirable discharge.
ARMY | BCMR | CY2006 | 20060001466C070205
The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. He served as a supply clerk and was released from active duty on 29 April 1972. The applicant was discharged with a discharge under other than honorable conditions on 11 October 1977 under the provisions of Army Regulation 635-206, for misconduct due to conviction by civil court.
ARMY | BCMR | CY2009 | 20090009675
IN THE CASE OF: BOARD DATE: 17 November 2009 DOCKET NUMBER: AR20090009675 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests upgrade of his general, under honorable conditions discharge to an honorable discharge. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
ARMY | BCMR | CY2006 | 20060001054C070205
On 10 March 1975, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties. On 27 April 1979, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable or general discharge. As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 26 April 1982.
ARMY | BCMR | CY1996 | 9607082C070209
APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable. 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 was 18 years old when he enlisted on 19 January 1968.
ARMY | BCMR | CY1997 | 9709426C070209
APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge. On 7 November 1967, the applicants commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court with confinement in excess of 1 year. On 28 December 1967, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge.