APPLICANT REQUESTS: The applicant requests In effect, that his general 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 was born on 18 January 1949. He completed 12 years of formal education. On 20 March 1967, the applicant enlisted in the Regular Army for 3 years. He completed the required training and was awarded military occupational specialty 94B10 (Cook). The highest grade he achieved was pay grade E-3.
On 29 June and 25 August 1967, the applicant accepted two nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order, for being absent without leave (AWOL) from 19 to
29 June 1967 and from 21 to 24 August 1967. His punishments included forfeitures, restrictions and extra duties.
On 7 June 1968, the applicant was convicted by a special court-martial (SPCM) of striking his superior noncommissioned officer and for disobeying a lawful order. He was sentenced to a reduction to pay grade E-1, a forfeiture of $69 pay per month for 6 months and confinement at hard labor for 6 months.
On 4 May 1969, the applicant was convicted by a SPCM of being AWOL from 22 March to 3 April 1969. He was sentenced to a forfeiture of $68 pay per month for 6 months and confinement at hard labor for 6 months.
Between 4 August 1969 and 9 June 1970, the applicant accepted three NJPs under Article 15, UCMJ, for three occasions of being AWOL from 18 to 22 July 1969, from 7 to
8 April 1970 and from 18 to 29 May 1970. His imposed punishment included forfeitures, restrictions and extra duties.
On 15 January 1971, court-martial charges were preferred against the applicant for being AWOL from 2 June 1970 to
8 January 1971.
On 3 February 1971, 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 February 1971, a mental and a physical evaluation found the applicant fit for retention.
On 12 February 1971, the appropriate authority approved his request and directed the issuance of a undesirable discharge (UD). On the same day, 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 (UD). He had completed 3 years of creditable active service and had
323 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 UD is normally considered appropriate.
On 4 April 1977, the Army Discharge Review Board (ADRB) upgraded the applicants discharge to a general discharge. However, upon a re-review of the applicants file, the ADRB did not affirm the upgraded 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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 4 April 1977, the date the ADRB upgraded his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 4 April 1980.
The application is dated 2 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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