APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) 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 was born on 3 July 1948. He completed 12 years of formal education. On 16 June 1976, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 21 (Category IV). He completed the required training and was awarded military occupational specialty 13B10 (Cannon Crewman). The highest grade he achieved was pay grade E-3.
On 17 May 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order. His imposed punishment was a reduction to pay grade E-2 (suspended for 1 month), a forfeiture of $50 pay and
14 days restriction.
On 8 September 1977, the applicant was convicted by a special court-martial of aggravated assault. He was sentenced to confinement at hard labor for 5 months,
a forfeiture of $200 pay per month for 5 months and a reduction to pay grade E-1.
While in military confinement, disciplinary proceedings were imposed against the applicant on two different occasions for breaking restriction, for the wrongful possession of marijuana, for assault and for communicating a threat. However, particulars are missing from his files.
On 16 November 1977, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness,(frequent incidents of a discreditable nature with civil and military authorities). The commanders recommendation was based on the applicants misconduct and action which indicated that he could not be rehabilitated for productive military service. On 18 November 1977, the applicant acknowledged notification, consulted with legal counsel and requested a hearing before a board of officers. The applicants request was approved by the commander.
On 24 November 1977, a report of physical and mental status evaluation indicated that the applicant had no physical or mental defects sufficient to warrant separation through medical channels. That report also indicated that the applicant was mentally responsible, able to distinguish right from wrong, and adhere to the right.
On 12 December 1977, the board of officers convened, and the applicant was represented by appointed counsel. The board found the applicant undesirable for further military service and recommended that he be discharged from service for unfitness with a discharge UOTHC.
On 20 December 1977, the appropriate authority approved the findings and recommendation and directed the issuance of a discharge UOTHC. On 25 January 1978, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 13, for unfitness with a discharge UOTHC. He had completed 1 year, 2 months and
21 days of creditable active service and 139 days of lost time.
Army Regulation 635-200, chapter 13, then in effect, set forth the basic authority for separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that commanders would separate a member when, in the commanders judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
Title 10, US 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. Failure to file within 3 years may be excused by a correction board if 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
25 January 1978, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 January 1981.
The application is dated 4 December 1993, 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 | CY2011 | 20110022414
However, his record contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged from active duty in pay grade E-1 on 14 June 1978 under the provisions of Army Regulation 635-200, paragraph 14-33, for Misconduct. On 24 April 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge. However, the evidence shows he was discharged on 14 June 1978 under the provisions of Army Regulation 635-200, paragraph 14-33, for misconduct.
ARMY | BCMR | CY1996 | 9606005C070209
On 18 January 1978, the applicants commander officially recommended that the applicant be discharged under paragraph 13-5, Army Regulation 635-200, for misconduct because of frequent incidents of a discreditable nature; He indicated that the applicants conduct and efficiency were unsatisfactory; that the applicant was sent to the USARB for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained soldier with improved attitude and...
ARMY | BCMR | CY2014 | 20140016441
On 4 April 1978, the applicants company commander recommended the applicant be discharged because of frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separation), paragraph 14-33b(1). On 22 May 1978, the applicant's company commander stated that applicant had elected to have his case heard before a board of officers and requested personal appearance before that board. The separation authority approved the...
ARMY | BCMR | CY2014 | 20140006706
The applicant requests upgrade of his discharge, from an under other than honorable conditions (UOTHC) discharge to a general discharge. The applicant states he would not have requested the discharge he received if he had better understood what the discharge meant. At the time, a UOTHC discharge was normally considered appropriate for Soldiers separated under chapter 13 of Army Regulation 635-200.
ARMY | BCMR | CY2009 | 20090016675
The applicant requests upgrade of his general, under honorable conditions discharge to an honorable discharge. On 17 April 1979 the applicant was separated under the provisions of Army Regulation 635-200, paragraph 13-4c with a general, under honorable conditions discharge. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.
ARMY | BCMR | CY2004 | 20040010900C070208
It was that examination that the applicant included with his application to the Board. Although documents associated with the applicant’s administrative separation were not in records available to the Board, his separation document indicates that he was discharged “under conditions other than honorable” on 16 December 1978, under the provisions of Army Regulation 635-200, Chapter 10. There is no evidence the applicant applied to the Army Discharge Review Board to have his discharge upgraded.
ARMY | BCMR | CY2011 | 20110021448
Application for correction of military records (with supporting documents provided, if any). The applicant requests, in effect, that his General Discharge (GD), under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP), be affirmed. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast...
ARMY | BCMR | CY2014 | 20140002860
On 2 June 1978, the applicants company commander recommended the applicant be discharged because of frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separation), paragraph 14-33. On 22 June 1978, a board of officers convened and after consideration of the evidence found the applicant had the ability to perform military duty in a satisfactory manner and his misconduct was evidenced by his conviction by a special...
ARMY | BCMR | CY1996 | 9608196C070209
On 19 January 1979, 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. 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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
ARMY | BCMR | CY1995 | 9506200C070209
He states he was discharged with known disabilities; mental and physical. 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. The time for the applicant to file a request for correction of any error or injustice expired on 24 July 1981. The applicant has not presented and the records do not contain sufficient justification to conclude that it would...