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 applicants 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
ARMY | BCMR | CY1997 | 9707509
He received counsel and acknowledged he understood he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate. 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. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for...
ARMY | BCMR | CY2011 | 20110000991
He further acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate. The applicant has not submitted any evidence to show he properly requested assistance due to his wife being sick or provided an explanation as to why he was AWOL for 503 days. _______ _ X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army...
ARMY | BCMR | CY2011 | 20110012923
The applicant requests his undesirable discharge (UD) be upgraded to a general discharge. In his request for discharge, he acknowledged he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. Although an honorable or general discharge is authorized, a UD was normally considered appropriate at the time the applicant was discharged.
ARMY | BCMR | CY2011 | 20110013059
The evidence of record shows that upon his return from Vietnam he went AWOL for 1,315 days. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge. _______ _ _X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2009 | 20090000774
On 29 September 1975, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 30 May 1974 to on or about 22 September 1975. In his request for discharge, the applicant acknowledged that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. ...
ARMY | BCMR | CY2005 | 20050002103C070206
On 26 February 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge. Accordingly, the applicant was discharged with an undesirable discharge on 22 March 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. The applicant’s record of service included five nonjudicial punishments and 171 days of lost time.
ARMY | BCMR | CY1996 | 9606481C070209
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge. On 14 November 1973, court-martial charges were preferred against the applicant for being AWOL from 12 July 1970 to 11 November 1973. On 7 February 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a UD.
ARMY | BCMR | CY2012 | 20120001689
The applicant requests an upgrade of his undesirable discharge (UD) to a fully honorable discharge. Although he was attached to a unit, his commander told him he was AWOL (absent without leave). _______ _ __X____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2005 | 20050008709C070206
On 17 December 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge. Accordingly, the applicant was discharged with an undesirable discharge on 19 December 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. 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.
ARMY | BCMR | CY2010 | 20100015131
His DD Form 214 shows he had completed a total of 6 years, 10 months, and 6 days of creditable service with 388 days of lost time prior to his normal expiration term of service (ETS). The DA Form 20 lists the applicant's periods of lost time as: * 2 - 3 November 1965, 2 days AWOL * 2 - 20 February 1966, 19 day AWOL * 4 April - 17 August 1966, 136 days AWOL * 18 August - 15 December 1966, 120 days in confinement * 25 February 1971 - 29 June 1971, 125 days AWOL [the applicant was assigned to...