MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 24 November 1998
DOCKET NUMBER: AC97-08825
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion,
if any)
APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable. He states that he was under the influence of self-medication because of suffering from the cause and effects of Post-Traumatic Stress Disorder at the time of his separation based on events he encountered during his tour of duty in Vietnam. He believes his discharge was unjust and unfairly given and notes that he is now trying to pick himself up and start his life all over again. In support of his request he submits several statements from individuals recounting his treatment for PTSD.
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 and entered active duty on 29 June 1965. Following completion of training as a stock control and accounting specialist he was assigned to Germany in December 1965.
Between 1965 and 1967 he was punished at least five times under Article 15 of the UCMJ for various offenses, including drunk and disorderly, AWOL, failing to go to his appointed place of duty and breaking windows in an attempt to unlawfully enter a mess facility. As a result of his pattern of misconduct he was barred from reenlisting in November 1966 but the bar was lifted in 1967 which allowed him to reenlist effective 9 October 1967.
In July 1968 the applicant was reassigned to Vietnam where he remained until July 1969. While in Vietnam he performed duties in the supply field with the 573rd Supply and Service Company. He was promoted to pay grade E-4 while in Vietnam.
Upon his return to the United States he commenced a series of AWOL periods which ultimately resulted in conviction by a special court-martial and referral of additional AWOL charges in June 1971. When the charges were preferred in June 1971 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.
A physical examination, conducted on 15 June 1971, cleared him for administrative separation.
The applicants request was approved and on 19 July 1971 he was discharged from the Army under other than honorable conditions. At the time of his release he had completed a total of 4 years, 8 months, and 22 days of active Federal service with more than 500 days of lost time.
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 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. A discharge under other than honorable conditions is normally considered appropriate.
In 1986 the Army Discharge Review Board unanimously denied the applicants request to upgrade 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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when 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 1986, the year in which the Army Discharge Review Board finalized their action. The time for the applicant to file a request for correction of any error or injustice expired in 1989.
The application is dated 26 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 prescribed by law.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__gdp___ ___cla__ __rwg___ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
INDEX
CASE ID
AC
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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