Search Decisions

Decision Text

ARMY | BCMR | CY1997 | 9709426
Original file (9709426.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge. He states, in effect, that he had a drug problem before and upon induction. His discharge was inequitable and excessive as it was based solely on a civil conviction, the sentence for which was excessive in itself. His prior service performance should have warranted no less than a general discharge.
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 was born on 3 December 1946. He completed 11 years of formal education. He was inducted into the Army on 1 August 1966 for 2 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 61A (Seaman).

On his pre-induction physical, the applicant checked “no” to the block “any drug or narcotic habit.”

The applicant departed absent without leave (AWOL) on 3 January 1967.

On 5 March 1967, while still in an AWOL status, the applicant was arrested by civil authorities for possession of marijuana. He was tried, convicted and was sentenced by the City of Norfolk Corporation Court to 3 years in the Virginia State Penitentiary.

On 7 November 1967, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court with confinement in excess of 1 year.

The applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel, and elected not to submit a statement in his own behalf.

On 20 December 1967, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.

On 28 December 1967, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge. He had completed 5 months and 3 days of creditable active service and had 361 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 8 October 1968, 1 March 1978 and 4 January 1982, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgraded discharge and denied his request all three times.

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 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 action 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 4 January 1982, the last date the ADRB denied the applicant’s request for upgrade. The time for the applicant to file a request for correction of any error or injustice expired on 4 January 1985.

The application is dated 12 May 1997. 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

 CONCUR WITH DETERMINATION




                                    Karl F. Schneider
                                                     Acting Director

Similar Decisions

  • ARMY | BCMR | CY1997 | 9709426C070209

    Original file (9709426C070209.TXT) Auto-classification: Denied

    APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge. On 7 November 1967, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court with confinement in excess of 1 year. On 28 December 1967, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge.

  • ARMY | BCMR | CY2014 | 20140020587

    Original file (20140020587.txt) Auto-classification: Denied

    The applicant requests an upgrade of his bad conduct discharge (i.e., under other than honorable conditions discharge). The board found the applicant was undesirable for further retention in the military service because of his conviction by civil court and recommended his discharge from the service with an undesirable discharge. Accordingly, a board of officers convened and found the applicant was undesirable for further retention in the military service because of his conviction by civil...

  • ARMY | BCMR | CY2013 | 20130007362

    Original file (20130007362.txt) Auto-classification: Denied

    On 29 January 1973, his immediate commander initiated separation action against him under Army Regulation 635-206 for his civil conviction. The board recommended his immediate discharge by reason of misconduct (civil conviction) with the issuance of an Undesirable Discharge Certificate. Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.

  • ARMY | BCMR | CY2006 | 20060000667C070205

    Original file (20060000667C070205.doc) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. As a...

  • ARMY | BCMR | CY2009 | 20090005661

    Original file (20090005661.txt) Auto-classification: Denied

    On 16 February 1968, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, for Civil Conviction, with an undesirable discharge. The evidence of record shows that the applicant was recommended for discharge with an undesirable discharge by reason of civil conviction. The evidence of record also shows the applicant was in civil confinement during the processing of his separation as he had been sentenced to 5 years and was confined at a...

  • ARMY | BCMR | CY2013 | 20130013059

    Original file (20130013059.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The court sentenced him to 4 years of confinement in the State Penitentiary (suspended) and placed him on probation for 4 years. He was sentenced to 4 years of confinement in the State Penitentiary (suspended) and placed on probation for 4 years.

  • ARMY | BCMR | CY2004 | 20040006591C070208

    Original file (20040006591C070208.doc) Auto-classification: Denied

    The applicant requests, in effect, that his undesirable discharge characterized as under other than honorable conditions be upgraded to an honorable discharge. The commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority...

  • ARMY | BCMR | CY2006 | 20060001466C070205

    Original file (20060001466C070205.doc) Auto-classification: Denied

    The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. He served as a supply clerk and was released from active duty on 29 April 1972. The applicant was discharged with a discharge under other than honorable conditions on 11 October 1977 under the provisions of Army Regulation 635-206, for misconduct due to conviction by civil court.

  • ARMY | BCMR | CY2009 | 20090004628

    Original file (20090004628.txt) Auto-classification: Denied

    On 28 October 1968, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, for Civil Conviction, with an undesirable discharge. The available evidence shows the applicant was recommended for discharge with an undesirable discharge by reason of civil conviction. The available evidence also shows the applicant was in civil confinement during the processing of his separation as he had been sentenced to 1 1/2 to 4 years and he was confined...

  • ARMY | BCMR | CY2010 | 20100009904

    Original file (20100009904.txt) Auto-classification: Denied

    Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). On 19 January 1982, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his undesirable discharge. Records show he was 20 years of age at the time he was convicted by a civil court for his offense.