APPLICANT REQUESTS: In effect, an upgrade of his discharge.
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 30 November 1954. He completed 12 years of formal education. On 30 August 1972, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 72 (Category II). He completed the required training and was awarded military occupational specialty 51R10 (Electrician). On 4 January 1974, the applicant was discharged under other than honorable conditions, after serving 1 year and 2 months of creditable active service. On 30 May 1974, the applicant erroneously enlisted for
3 years. (There is no evidence that the applicants command was aware of his previous enlistment).
On 30 October 1974, the applicant was convicted by a special court-martial for two occasions of disobeying a lawful order, for being absent without leave from 9 to 14 September 1974, for failure to repair and for being disrespectful. He was sentenced to confinement at hard labor for 3 months and
30 days restriction.
On 12 March 1975, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failure to repair and for dereliction in the performance of his duties. His imposed punishment was a reduction to pay grade E-2 and a forfeiture of $45 pay.
On the same day, a medical examination found the applicant physically fit for retention.
On 14 March 1975, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 5-37, (expeditious discharge with a GD. The commanders recommendation was based on the applicants poor duty performance, his negative behavior and his total disregard and contempt for authority and rules. After consulting with legal counsel, the applicant consented to the proposed discharge action, and
waived personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so.
The appropriate authority approved the recommendation and directed the issuance of a GD. On 25 March 1975, the applicant was discharged in pay grade E-3 under the provisions of Army Regulations 635-200, chapter 5-37, (expeditious discharge program-failure to maintain acceptable standards for retention), with a GD. He had completed 8 months and 7 days of creditable active service.
Army Regulation 635-200, at paragraph 5-37, then in effect, provided for the expeditious elimination of substandard, nonproductive soldiers before a board or punitive action became necessary under the expeditious discharge program. I also provided, in pertinent part, that no member could be discharged under the program unless he voluntarily consented to the proposed discharge, and that no member would be awarded a general discharge unless given the opportunity to consult with an appointed counsel for consultation.
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 25 March 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 25 March 1978.
The application is dated 13 September 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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