APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge. He states, in effect, that after twenty years, his life has changed, he has good friends and he has matured.
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 6 May 1957. He completed 11 years of formal education. On 30 October 1974, the applicant enlisted in the Regular Army for 3 years. His Armed Forces Qualification Test score was 59 (Category III).
He completed the required training and was awarded Military Occupational Specialty 94B10 (Food Service Specialist).
The highest grade he achieved was pay grade E-2.
On 30 May 1975, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for the possession of Marijuana. His imposed punishment was a reduction to pay grade
E-1, a forfeiture of $100 pay per month for 2 months,
25 days restriction and 15 days extra duty.
On 9 August 1975, court-martial charges were preferred against the applicant for stealing a Sony AM/FM radio and for stealing a fan.
On 22 August 1975, 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 2 September 1975, a medical and a mental examination found the applicant medically fit for retention.
On 16 September 1975, the appropriate authority approved his request and directed the issuance of a discharge UOTHC.
On 29 September 1975, 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 11 months of creditable active service.
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.
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
29 September 1975, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1978.
The application is dated 23 August 1994, 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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