APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge 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:
He was born on 2 April 1955. He completed 11 years of formal education. On 27 September 1976, the applicant enlisted in the Army National Guard for 6 years. His Armed Forces Qualification Test score was 18 (Category IV). He completed the required training and was awarded military occupational specialty 94B10 (Cook). The highest grade he achieved was pay grade E-2.
On 28 February 1977, the applicant accepted nonjudicial punishment, under Article 15, Uniform Code of Military Justice, for the wrongful possession of Marijuana. His imposed punishment was a forfeiture of $25 pay, 14 days restriction and extra duty.
The applicantÂ’s military record indicates that he was charged with at least 8 unexcused absences for missing scheduled unit training within a 1 year period. On 23 March 1978, the applicant was involuntarily ordered to active duty for a period of 18 months. The applicant was to report to active duty on 15 May 1978, however, he never reported for active duty.
On 20 October 1978, court-martial charges were preferred against the applicant for being absent without leave from
15 May to 14 October 1978.
On the same day, a mental and a physical evaluation found the applicant fit for retention.
On 23 October 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 December 1978, the appropriate authority approved his request, reduced the applicant to the lowest enlisted grade and directed the issuance of a discharge UOTHC. 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. He had completed 6 months of creditable active service and had 152 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 that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
19 January 1979, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 20 March 1982.
The application is dated 10 May 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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