APPLICANT REQUESTS: In effect, that his special upgraded discharge be affirmed.
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 29 February 1952. On 25 February 1970, the applicant reenlisted in the Regular Army for 3 years with
10 months and 24 days of prior active service. He completed the required training and was awarded military occupational specialty 63C10 (General Vehicle Repairman).
On 12 July 1970, while assigned to unit Vietnam, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for damaging military property.
His imposed punishment was a forfeiture of $45.00 pay.
On 24 July 1970, the applicant accepted an NJP, under Article 15, UCMJ, for being disrespectful. His imposed punishment was a reduction to pay grade E-3.
On 26 August 1970, the applicant underwent a psychiatric examination, he was diagnosed as having a character and behavior disorder. However, there was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels. He was considered mentally competent to participate in board proceedings.
On 4 September 1970, the applicant was notified that the commander was recommending a discharge under the provisions of Army Regulation 635-212 for unfitness. The recommendation was based on the applicants habitual shirking. His commander also indicated that the applicant had been formally counseled on three occasions and had accepted three NJPs for misconduct. The applicants separation packet contains several statements from members of his chain of command which attest to the applicants laziness, his disrespect toward authority and his willful shirking of his responsibilities. His commander recommended that he be issued a discharge under other than honorable condition (UOTHC). The applicant was advised by legal counsel of the contemplated separation action and the rights available to him. He waived personal appearance, consideration and representation by counsel before a board of officers.
On 29 September 1970, the commanding general approved the recommendation; waived rehabilitation requirements and directed the issuance of a discharge UOTHC.
The applicant was returned to the United States to be processed for separation. However, prior to his discharge being accomplished, he went absent without leave.
On 17 January 1972, the applicant was discharged in absentia under the provisions of Army Regulation 635-212 for unfitness (established pattern of shirking ) with a discharge UOTHC. He had completed 7 months and 8 days of creditable active service during this enlistment and was awarded the Vietnam Service Medal.
Army Regulation 635-212, then in effect at the time, set forth the basic authority for separation of enlisted personnel. Paragraph 6a (4) of the regulation provided, in pertinent part, that members who had established a pattern for shirking were subject to separation for unfitness and a discharge UOTHC was normally considered appropriate.
On 20 May 1977, the Army Discharge Review Board (ADRB) reviewed the applicants record under a special review program. On the basis of that review the ADRB upgraded the applicants discharge from a discharge UOTHC to a general discharge (GD).
On 11 July 1978, the ADRB, as required by Public Law 95-126, re-reviewed the previous upgrading of the applicants discharge. As a result of that review the board determined that the applicant did not qualify for upgrading under uniform standards for discharge. Accordingly, his upgraded discharge was not affirmed. The applicant was issued a DD Form 215 (correction to the DD Form 214), reflecting the appropriate change in his military records. The applicant was advised that the DD Form 215 in no way changed or modified the upgraded discharge previously received. However, he was informed that because of a new law, he would not be able to use that discharge to qualify for benefits under the Veterans Administration.
Public Law 95-126 provided in pertinent part for a Relook Program. All cases upgraded from under other than honorable conditions had to be relooked and affirmed or not affirmed under uniform standards.
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 11 July 1978, the date the ADRB reviewed the applicants upgraded discharge. The time for the applicant to file a request for correction of any error or injustice expired on 11 July 1981.
The application is dated 29 July 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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