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 applicants 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 applicants 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 applicants 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 Boards 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 applicants 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
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