APPLICANT REQUESTS: In effect, the applicant requests that his discharge under conditions other than honorable be upgraded to honorable. He states that the characterization of his discharge was unfair. He was young and he now has to live with this discharge the rest of his life. He suffered while in Vietnam.
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:
The applicant enlisted in the Army for three years on
30 March 1970, completed training and was assigned to a transportation company in Vietnam in August 1970. He was promoted to pay grade E-3 that same month.
On 4 January 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for violating a lawful general regulation by exceeding the speed limit with a 5 ton truck. On 22 February 1971 he received nonjudicial punishment for disobeying a lawful order on two separate occasions.
The applicant completed his tour in Vietnam and was transferred to Fort Hood, Texas. He was AWOL from
23 September to 9 October 1971.
On 15 December 1971 the applicant received nonjudicial punishment for sleeping while on barracks guard.
On 21 December 1971 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.
The applicants commanding officer recommended to the separation authority that the applicants request be approved and that he receive an undesirable discharge. That official stated that the applicant had been a disciplinary and administrative problem since his assignment to the unit in October 1971, he had received nonjudicial punishment on three occasions, two for AWOL and one for sleeping on guard duty, and was now pending a court-martial for sleeping on guard. The applicants commanding officer stated that the applicant showed no rehabilitative qualities.
On 13 January 1972 the separation authority approved the applicants request and directed that he be issued an Undesirable Discharge Certificate.
A 20 January 1972 mental status evaluation indicates that the applicant had no significant mental illness, was able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. The applicant met the medical standards for retention in the Army.
A 20 January 1972 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. The applicant stated: I AM IN good Health.
The applicant was discharged at Fort Hood on
18 February 1972. He had 1 year, 10 months, and 1 day of service and 17 days of lost time.
On 11 October 1984 the Army Discharge Review Board denied the applicants request to upgrade his discharge.
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 under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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
11 October 1984, the date the Army Discharge Review Board denied the applicants request to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 11 October 1987.
The application is dated 22 September 1995 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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