APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge. He states, in effect, he went AWOL due to a personality disorder brought on by Operation Just Cause in Panama, and that he is really a good soldier.
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 enlisted in the Regular Army on 21 June 1989, and was discharged under conditions other than honorable on 1 May 1990. He had 3 years of prior honorable active service.
Court-martial charges were preferred against the applicant for AWOL and several incidents of misconduct.
On 19 April 1990 he requested discharge for the good of the service, under the provisions of AR 635-200, chapter 10, to avoid trial. He received counsel and acknowledged he understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He also acknowledged he understood as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, ineligible for many or all benefits administered by the VA and may be deprived of his rights and benefits as a veteran under both Federal and State law.
The appropriate authority approved his request and directed that he be issued an Undesirable Discharge Certificate.
Accordingly, he was discharged under other than honorable conditions on
1 May 1990 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He was credited with 9 months, and 27 days total active service and 15 days lost time for AWOL and confinement.
Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.
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.
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.
Army Regulation 15-180 provides for petitioning the Army Discharge Review Board for upgrade of the characterization or the reason and authority for discharge, or both. Application may be made with DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), within 15 years after the date of discharge or dismissal.
Under these provisions the applicant may still petition the ADRB for an upgrade of his 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. 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 1 May 1990, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 1 May 1993.
The application is dated 11 December 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
Loren G. Harrell
Director
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