APPLICANT REQUESTS: The applicant requests that his bad conduct discharge be upgraded to a general under honorable conditions discharge. He states, in effect, that he was immature and had personal and alcohol problems at the time.
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 applicantÂ’s military records show:
He was born on 1 June 1960. He completed 12 years of formal education. He enlisted in the Army on 29 August 1978 for 3 years. He completed basic combat training and advanced individual training (AIT) was awarded Military Occupational Specialty 13F (Fire Support Specialist).
Between 29 November 1979 and 7 October 1980, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on four separate occasions for various offenses, including failure to repair, being disrespectful to a superior officer, and unlawfully striking two individuals. His imposed punishments included reductions to the next lower grade, forfeitures of pay and extra duty and/or restriction.
On 4 May 1981 the applicant received a physical for the reason of a chapter separation and was found qualified for separation. No further information on this chapter separation are available.
On 12 May 1981 the applicant was convicted by a special court-martial on 17 separate specifications, including charges being disorderly in a public place, being disrespectful towards a superior non-commissioned officer, failure to obey a lawful order, stealing U.S. currency of some value, striking a superior non-commissioned officer and unlawfully striking a military policemen. His sentence of a bad conduct discharge, confinement at hard labor for 6 months, and a forfeiture of $334 pay for 6 months was approved on 11 August 1981.
On 23 November 1981, the United States Army Court of Military Review approved the sentence.
On 7 June 1982, he was discharged, in pay grade E-1, with a bad conduct discharge. He had completed 3 years, 4 months and 16 days of creditable active service and had 107 days of lost time, plus an additional 35 days after his normal expiration term of service.
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. 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 19 April 1979, the date the ADRB denied the applicantÂ’s request for an upgrade. The time for the applicant to file a request for correction of any error or injustice expired on 19 April 1982.
The application is dated 15 January 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
Loren G. Harrell
Director
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