APPLICANT REQUESTS: In effect, that his discharge be upgraded to an honorable discharge. He states, in effect, that he is seeking a further upgrade based upon secret prior service with the CIA.
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 applicants military records show:
He was born on 24 March 1946. He completed 12 years of formal education. He enlisted in the Regular Army on 30 October 1974 for 3 years. He completed basic training and advanced individual training and was awarded military occupational specialty 05F (Radio Teletype Operator).
On 20 August 1976, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.
On 19 May 1977, the applicant was convicted by a special court-martial of failing to go to his appointed place of duty and disobeying a lawful order. He was sentenced to confinement at hard labor for 45 days, to be reduced to pay grade E-1, and to forfeit $100 pay for 2 months.
On 22 June 1977, the Army Retraining Brigade recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 13 for frequent acts of a discreditable nature with civil or military authorities.
On 5 July 1977, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 13 with a discharge under other than honorable conditions. He had completed 2 years and 7 months of creditable active service and had 36 days of lost time.
Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.
On 8 March 1982, the Army Discharge Review Board (ADRB) upgraded the applicants discharge to a general under honorable conditions discharge. That Board determined that the commands failure to obtain a proper mental status evaluation was prejudicial to the applicant because the command failed to determine the applicants psychiatric condition despite evidence of psychiatric problems shortly after his arrival at Fort Riley, KS
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 ADRB are by statute allowed 15 years to apply there, and that this Boards 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 action 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 8 March 1982, the date the ADRB upgraded the applicants discharge. The time for the applicant to file a request for correction of any error or injustice expired on 8 March 1985.
The application is dated 23 December 1996. 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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