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ARMY | BCMR | CY1997 | 9707073
Original file (9707073.rtf) Auto-classification: Denied

APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable. He states it as been 15 years and he has not been able to get any type of assistance in receiving his upgrade. He also states that he hopes the Correction Board can assist him in obtaining his upgrade.

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 8 May 1978 for a period of 3 years. He had prior active service of 2 years, 6 months, and 1 day.

During his service he was counseled and received nonjudicial punishment on numerous occasions for financial irresponsibility, disobeying orders of his superiors, driving while intoxicated and without a drivers license, and other misconduct.

On 3 June 1980 the applicant’s commander initiated action to separate the applicant from the service under the provisions of AR 635-200, chapter 14, for misconduct. After consulting with counsel, he elected not to submit a statement on his own behalf, and he acknowledged that with a less than honorable discharge he may expect to encounter substantial prejudice in civilian life, and that he may be ineligible for many or all normal veteran benefits.

The applicant underwent a mental evaluation on 9 June 1980 which determined that he could distinguish between right and wrong. Consequently, the applicant was cleared psychiatrically for administrative action deemed necessary by command.

The appropriate authority approved the recommendation for separation on 20 August 1980 and directed that he be issued a Discharge Certificate Under Other Than Honorable Conditions.

Accordingly, on 2 September 1980 the applicant was discharged UOTHC, in pay grade E-1, under the provisions of AR 635-200, chapter 14, for misconduct - frequent incidents of a discreditable nature with civil or military authority. He had served 2 years, 3 months, and 25 days for this enlistment.

The applicant did not petition the Discharge Review Board for a discharge upgrade within 15 years of his separation.

Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or is unlikely to succeed.

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.

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
2 September 1980, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 2 September 1983.

The application is dated 16 October 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 prescribe by law.

BOARD VOTE:
____ ____ ____ EXCUSE FAILURE TO TIMELY FILE

____ ____ ____ GRANT FORMAL HEARING

____ ____ ____ CONCUR WITH DETERMINATION




KARL F. SCHNEIDER
Acting Director

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