APPLICANT REQUESTS: That his general discharge be upgraded to honorable. He offers no reason or evidence for the upgrade. (Note: In the interest of time the applicants DD Form 293 was accepted in lieu of a DD Form 149.)
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 entered active duty on 22 September 1975 at the age of 18 with 10 years of formal education. Following successful completion of basic and advanced individual training he was assigned to Fort Hood, Texas as an infantryman.
In February 1976 he was punished under Article 15, UCMJ for possession of marijuana. In October 1976 the applicants unit commander recommended he be administratively separated under the Armys Expeditious Discharge Program because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially and emotionally, and failure to demonstrate promotion potential. He recommended the applicant receive a general discharge.
The applicant, after consulting with counsel, consented to a general discharge and declined to make any statements on his own behalf.
The approval authority approved the recommendation and on
4 November 1976 the applicant was separated from active duty with a general discharge. At the time of his separation he had completed 1 year, 1 month and 13 days of creditable service.
In l974, the Department of the Army authorized the Commander in Chief, United States Army Europe to test a new discharge program, entitled the Expeditious Discharge Program (EDP). This program provided that an individual who had completed
at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated under the EDP. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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. Failure to file within 3 years may be excused by a correction board if 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 November 1976, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 4 November 1979.
The application is dated 18 January 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
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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