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Decision Text

ARMY | BCMR | CY1997 | 9707268
Original file (9707268.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to a honorable discharge.
APPLICANT STATES: He states that he knows (AWOL) was wrong, but the Army did not want to hear about the problems he was having with his wife. He also states that his wife wanted to return to Cumberland, MD after he had received orders for Ft. Dix, NJ, so he made arrangements to send her back to Cumberband, MD while he remained at Ft. Dix, NJ. While visiting his wife he learned she had contracted a Venereal Disease (VD) which was transmitted to him, and soon after that they were divorced and he was awarded custody of his son on 15 September 1971.

He also states that since he served in Vietnam the board would have compassion and approve his request for an upgrade.

 PURPOSE : To determine whether the application was submitted within the time limit established by law, and also to determine the error or injustice as stated by the applicant is substantial, and if not, whether it is in the interest of justice to excuse the injustice and/or the failure to timely file.

 EVIDENCE OF RECORD : The applicant's available military records show:

He enlisted in the Regular Army on 28 February 1968 and then was separated under conditions other than honorable on
28 January 1971.

On 14 January 1971 Ft. George E. Meade, Special Processing Branch issued and extract of military records form of previous convictions, which stated he was AWOL from 4-18 May 1970, and 8-12 June 1970. The form showed he also given a Article 134 for unlawful possession of a credit card.

He has also provided a copy of his divorce decree dated
15 September 1971.

There is no other available documentation to support his request.

The facts and circumstances pertaining to the applicant’s discharge are not clearly stated in the records. His records show that he was discharged on 28 January 1971 under other than honorable conditions under the provisions of
AR 635-200, chapter 10, for the good of the service and was issued and Undesirable Discharge Certificate. He had served 2 years, 3 months, and 26 days total active service and had 138 days lost time due to AWOL.

Army Regulation 635-200 sets forth the basic authority for 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 request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

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
28 January 1971 the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 28 January 1974, 3 years subsequent to the establishment of the Correction Board.

The application is dated 18 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 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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