APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded. He states that he knows AWOL was wrong, but the Army did not want to hear about the problems he was having with his family. He also states that his mother was dying and he had no other choice but to go AWOL. In effect, he states that he needs an upgrade to receive Veterans benefits.
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 military records show:
He was enlisted in the Regular Army on 18 November 1968 for 3 years. On 21 September 1969 he was discharged to reenlist on 22 September 1969 for 6 years. On 8 March 1970 he was discharged to reenlist on 9 March 1970 for 6 years. The expiration term of service was 8 March 1976.
He received nonjudicial punishment under Article 15, UCMJ, for AWOL 1 through 3 November 1969.
He was again AWOL 26 April through 3 November 1970 and confined from 4 through 17 November 1970.
Court-martial charges were preferred against him for AWOL.
He requested and received approval for discharge for the good of the service to avoid trial by court-martial.
He acknowledged he understood he may be discharged under other than honorable conditions and furnished a UD 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.
His discharged was approved. On 11 December 1970, he was discharged UOTHC in pay grade private E-1, under the provisions of Army Regulation (AR) 635-200, chapter 10.
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 Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members 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 clearly inappropriate.
AR 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 at any time after changes have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicants separation the regulation provided for the issuance of a UD.
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
11 December 1970 the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 11 December 1973.
The application is dated 25 November 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.
NOTE: The Reserve Personnel Center is requested to review the applicants DD Form 214 issued on 11 December 1970, concerning date of entry and net service this period, for correction deemed appropriate.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY1997 | 9707718
On 8 March 1970 he was discharged to reenlist on 9 March 1970 for 6 years. He acknowledged he understood he may be discharged under other than honorable conditions and furnished a UD Certificate. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
ARMY | BCMR | CY2010 | 20100029538
At Fort Ord, CA, he was charged with 3 specifications of being AWOL from 19 May to 17 June 1969, 20 June to 12 August 1969, and 16 August to 27 September 1969. In his request for discharge he acknowledged that he understood by requesting a discharge he was admitting guilt to the charge(s) against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for an upgrade of his UD has been carefully considered;...
ARMY | BCMR | CY2004 | 20040007809C070208
The applicant requests that his records be corrected by upgrading 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. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.
ARMY | BCMR | CY2004 | 2004106958C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 January 2005 DOCKET NUMBER: AR2004106958 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. Delia R. Trimble | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. In his request for discharge, the applicant indicated that he understood that by...
ARMY | BCMR | CY2006 | 20060009491C080410
The applicant requests that his records be corrected by upgrading his discharge. On 25 March 1970, the applicant's unit and brigade commander's recommended approval of his discharge request with the issuance of an undesirable discharge. On 8 April 1970, the appropriate separation authority approved the applicant’s discharge request under the provisions of Army Regulation 635- 200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the...
ARMY | BCMR | CY2008 | 20080010669
He served for a period of 1 year, 1 month, and 4 days until being honorably released from active duty for the purpose of immediate reenlistment on 5 April 1965. 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 a request for discharge for the good of the service in lieu of trial by court-martial. The...
ARMY | BCMR | CY2005 | 20050016005C070206
The applicant requests his undesirable discharge be upgraded to an honorable discharge. On 24 December 1969, the separation authority approved the applicant’s request for discharge and directed that he receive an undesirable discharge. The applicant requested that his undesirable discharge be upgraded to honorable discharge.
ARMY | BCMR | CY2005 | 20050001901C070206
The applicant requests that his undesirable discharge be upgraded to honorable. On 28 September 1970, the separation authority approved the applicants request for discharge and directed that he be issued an undesirable discharge. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 7 November 1980.
ARMY | BCMR | CY2005 | 20050001901C070206
The applicant requests that his undesirable discharge be upgraded to honorable. The application submitted in this case is dated 31 January 2005. On 28 September 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.
ARMY | BCMR | CY2011 | 20110003310
IN THE CASE OF: BOARD DATE: 30 August 2011 DOCKET NUMBER: AR20110003310 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. _______ _ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for...