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 grandmothers 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 applicants 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 applicants 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 commanders 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
ARMY | BCMR | CY1997 | 9707478
On 4 April 1977, the applicant’s company commander initiated separation proceedings under Army Regulation 635-200, Chapter 13 for unsuitability. On 22 April 1977, the appropriate authority approved the discharge action and directed issuance of a General Discharge Certificate. 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.
ARMY | BCMR | CY2006 | 20060004797C070205
The applicant requests that his general discharge be upgraded to honorable. On 2 August 1977, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
ARMY | BCMR | CY2010 | 20100022625
The applicant states he was to be court-martialed due to a total nervous breakdown. On 5 April 1977, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability with the issuance of a General Discharge Certificate. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a General...
ARMY | BCMR | CY2005 | 20050002481C070206
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2005 DOCKET NUMBER: AR20050002481 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The unit commander recommended that the applicant be required to appear before a board of officers to determine whether he should be discharged before his expiration of his term of service. He had completed 1 year,...
ARMY | BCMR | CY2009 | 20090020233
The applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively. There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations. Army Regulation 635-200, paragraph 3-7a, provides that an honorable...
ARMY | BCMR | CY2011 | 20110016562
On 31 July 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. Army Regulation 635-200 (Personnel Separations): a. Even though the applicant was age 18 when he entered the military he satisfactory completed training, and completed an overseas tour of duty in Panama before any negative incidents were documented against him.
ARMY | BCMR | CY2012 | 20120022239
The applicant requests an upgrade of his general discharge to an honorable discharge for medical reasons. The applicant was accordingly discharged on 23 September 1976. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was separated from the service with an Honorable Discharge Certificate on 23 September 1976.
ARMY | BCMR | CY2009 | 20090021818
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individuals entire record.
ARMY | BCMR | CY2006 | 20060008550C070205
The counselor recommended an immediate change in the applicant's attitude, that the applicant show respect to his superiors, that he perform the job he was trained to do, and perform those duties assigned to him without question. Army Regulation 635-200, sets forth the requirements and procedures for the administrative discharge of enlisted personnel. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 10 December 1981.
ARMY | BCMR | CY2010 | 20100020616
On 30 June 1982, the appropriate authority waived further rehabilitative requirements, approved the recommendation for discharge under the provisions of chapter 13 of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. When separation for unsuitability is warranted, an honorable or general discharge is issued as determined...