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Decision Text

ARMY | BCMR | CY1997 | 9705671
Original file (9705671.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded. He states, in effect, he knows that AWOL was wrong but he was mixed up back then. He wishes to have his discharge upgraded for the purposes of obtaining Veterans benefits.
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 30 December 1970 for 2 years.

During his service he received nonjudicial punishment under Article 15, UCMJ, and counseling on numerous occasions for AWOL and misconduct. He had a total of 268 days of time lost due to AWOL, confinement, and desertion.

He requested and received approval for discharge for the good of the service to avoid trial by court-martial. He 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.

He was discharged on 13 April 1972. He was issued an Undesirable Discharge Certificate.

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.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 member’s 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.

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
13 April 1972, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 13 April 1975.

The application is dated 11 November 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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