MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 28 October 1998
DOCKET NUMBER: AC97-09410
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 records be corrected by upgrading his discharge to honorable.
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:
On 1 October 1976, he enlisted in the regular Army for a period of 3 years.
He was advanced to pay grades E-2, E-3 and E-4, on 1 April 1977, 1 June 1977, and 1 August 1978, respectively.
On 21 February 1979, the applicant was absent without leave (AWOL) until 10 December 1981, when he surrendered to military authorities.
On 10 December 1981, his commander preferred court-martial charges against him for being AWOL for the period 21 February 1979 to 10 December 1981.
On 10 December 1981, a mental status evaluation cleared the applicant for separation. The applicant declined a separation physical.
On 11 December 1981, the applicant, after consulting with legal counsel, voluntarily requested a discharge for the good of the service, under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He acknowledged that he was guilty of the charges against him. Included in his request were statements that he had consulted with counsel, and had been fully advised of his rights and the possible effects of an under other than honorable conditions (UOTHC) discharge.
On 30 December 1981, the appropriate separation authority approved his request and directed his reduction to pay grade E-1, and the issuance of an UOTHC discharge certificate.
On 13 January 1982, the applicant was separated with an UOTHC discharge under AR 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. His Report of Separation indicates that he had 2 years, 5 months, and 24 days of creditable service and 1,023 days of lost time.
On 18 August 1987, the Army Discharge Review Board denied the applicants request for a change in the type and nature of his discharge.
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 the charges have been preferred and must include the individuals admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.
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 on 18 August 1987, the date the ADRB finalized his case. The time for the applicant to file a request for correction of any error or injustice expired on 18 August 1990.
The application is dated 23 May 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
__jhl___ __cwb___ ___rvo__ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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