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Decision Text

ARMY | BCMR | CY1997 | 9707478
Original file (9707478.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge. He also states that he accepted the under honorable conditions discharge because he wanted to be at his sick grandmother’s side. He wants an honorable discharge to clear his mind, that it has been a thorn in his side for many years, and to please give an old soldier another chance.
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 was born on 31 August 1957. He completed 11 years of formal education. He enlisted in the Delayed Entry Program on 23 October 1974 and enlisted in the Regular Army on 1 November 1974 for 3 years. He completed basic training and Advanced Individual Training and was awarded Military Occupational Specialty 12B (Combat Engineer).

Between February 1976 and January 1977, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on three separate occasions for the offenses of wrongful possession of marijuana; disobeying a lawful order and being disrespectful in language towards his superior non-commissioned officer; and for wrongful appropriation of a jeep.

On 4 April 1977, the applicant’s company commander initiated separation proceedings under Army Regulation 635-200, Chapter 13 for unsuitability. The commander stated the applicant arrived at the unit with an apathetic attitude, was unwilling to perform simple tasks, and had a total lack of concern for his duties. He was counseled on several occasions concerning his poor attitude.

On 8 April 1977, the applicant was advised by legal counsel of the pending separation action. The applicant waived consideration of his case by a board of officers, he waived his right to a personal appearance before a board, and he elected not to submit a statement on his behalf.

The applicant received a separation physical and was found qualified for separation.

On 22 April 1977, the appropriate authority approved the discharge action and directed issuance of a General Discharge Certificate.

On 5 May 1977, he was discharged, in pay grade E-2, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability - apathy, defective attitude or inability to expend effort constructively, with a general discharge under honorable conditions. He had completed 2 years, 5 months and 5 days of creditable active service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

The applicant never applied to the Army Discharge Review Board 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 5 May 1977, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 5 May 1980.

The application is undated by the applicant but is date stamped 13 November 1996 by an unknown office. 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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