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Decision Text

ARMY | BCMR | CY1997 | 9707509
Original file (9707509.rtf) Auto-classification: Denied

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to honorable. He states he was not tried for what he was accused of but was put into the stockade for 90 days by his commander for fighting. He then had to obtain an inmate lawyer who was only able to offer him a UD.

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 28 February 1973 for a period of 3 years.

During his service he was counseled and received nonjudicial punishment for AWOL and misconduct.

Court-martial charges were preferred against the applicant for unlawfully obtaining $5.00 from another soldier by threatening to keep or destroy his eyeglasses, by assaulting another soldier by striking him with an open hand, by striking another soldier with a steel prong afro type comb on the forehead with a means of force likely to produce grievous bodily harm, failure to repair to his place of duty, and AWOL.

The applicant requested discharge for the good of the service, under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial. He received counsel and acknowledged he understood he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate. He also acknowledged he understood as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, ineligible for many or all benefits administered by the VA and may be deprived of his rights and benefits as a veteran under both Federal and State law.

The appropriate authority approved the recommendation.

Accordingly, he was discharged under other than honorable conditions on
8 November 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He was credited with
7 months, and 21 days creditable service and 20 days lost time due to AWOL.

He was issued a UD certificate.

There is no evidence the applicant petitioned the Discharge Review Board (ADRB) for a discharge upgrade within 15 years of his separation.

Army Regulation 635-200 sets forth the basic authority for the 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under conditions other than honorable is normally considered appropriate.

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.

Paragraph 3-7 provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 in 8 November 1973, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 8 November 1976.

The application is dated 1 March 1997 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




Loren G. Harrell
Director


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