Search Decisions

Decision Text

ARMY | BCMR | CY1997 | 9710244
Original file (9710244.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests that his bad conduct discharge be upgraded. He states, in effect, that he earned an honorable discharge before. He was treated in a way that made him feel he had done something wrong just by following orders.
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 inducted into the Army on 9 January 1969. He was honorably discharged on 12 October 1970 for the purpose of immediate reenlistment on 13 October 1970. He served in Vietnam as a combat engineer from 1 January to 25 November 1970 where he earned the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

On 2 October 1971, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for unlawfully entering an off-limits area.

On 25 July 1972, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 2 March to 25 May 1972 and from 22 to 26 June 1972. His approved sentence was a reduction to pay grade E-3 and a forfeiture of $80 for 3 months.

On 24 April 1975, the applicant pleaded guilty to and was convicted by a special court-martial on of possessing and selling about 7.8 grams of hashish. His approved sentence was a reduction to pay grade E-1, a forfeiture of $100 pay for 3 months, confinement at hard labor for 3 months and a bad conduct discharge.

On 8 July 1975, the applicant was restored to active duty pending his appellate review.

The appellate review is not available.

On 13 November 1975, he was discharged, in pay grade E-1, with a bad conduct discharge pursuant to his court-martial conviction. He had completed 6 years, 5 months and 21 days of creditable active service and had 164 days of lost time.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.
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 13 November 1975, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 13 November 1978.

The application is dated 9 July 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
                                                      

Similar Decisions

  • ARMY | BCMR | CY1997 | 9710244C070209

    Original file (9710244C070209.TXT) Auto-classification: Denied

    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. 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 applicant has not presented and the records do not contain sufficient justification to conclude that it would be in...

  • ARMY | BCMR | CY2004 | 20040002536C070208

    Original file (20040002536C070208.doc) Auto-classification: Denied

    The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice UCMJ) on two separate occasions. On 13 June 1972, the applicant was separated with a BCD. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of...

  • ARMY | BCMR | CY2005 | 20050001249C070206

    Original file (20050001249C070206.doc) Auto-classification: Denied

    U.S. Army Military Personnel Center [Alexandria, Virginia] Letter Order Number 9-4, dated 10 September 1975, discharged the applicant with a Bad Conduct Discharge. There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. The applicant provided insufficient evidence, and there is no evidence in the available records, which supports his contention that his bad conduct discharge should...

  • ARMY | BCMR | CY2005 | 20050001249C070206

    Original file (20050001249C070206.TXT) Auto-classification: Denied

    U.S. Army Military Personnel Center [Alexandria, Virginia] Letter Order Number 9-4, dated 10 September 1975, discharged the applicant with a Bad Conduct Discharge. There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. The applicant provided insufficient evidence, and there is no evidence in the available records, which supports his contention that his bad conduct discharge should...

  • ARMY | BCMR | CY2006 | 20060002490C070205

    Original file (20060002490C070205.doc) Auto-classification: Denied

    The applicant states, in effect, that it has been well over 30 years ago, with timed served; that he was young and immature; and that he is currently 58 years old. At a general court-martial on 23 September 1971, while serving in Vietnam, the applicant pled not guilty to the charge and its specification that on or about 2130 hours, on 21 July 1971, with "intent to commit murder”, he committed an assault on another Soldier by stabbing him in the chest with a knife. When authorized, it is...

  • ARMY | BCMR | CY2009 | 20090020323

    Original file (20090020323.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. The evidence of record confirms the applicant's conviction and discharge were effected in accordance with applicable law and regulations, and there...

  • ARMY | BCMR | CY2012 | 20120003690

    Original file (20120003690.txt) Auto-classification: Denied

    His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. _______ _ _______ ___ CHAIRPxERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120003690 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR...

  • ARMY | BCMR | CY2012 | 20120010607

    Original file (20120010607.txt) Auto-classification: Denied

    On 21 April 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, that states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. When authorized, it is issued to a Soldier whose military record is satisfactory but not...

  • ARMY | BCMR | CY2010 | 20100009622

    Original file (20100009622.txt) Auto-classification: Denied

    The applicant requests that his bad conduct discharge (BCD) be upgraded to a general discharge. Item 44 of his DA Form 20 shows the applicant was absent without leave (AWOL) during the period 25 April through 11 July 1972. His record contains no indication he requested an upgrade of his discharge by the Army Discharge Review Board (ADRB) within that board's 15 year statute of limitations.

  • ARMY | BCMR | CY2005 | 20050001897C070206

    Original file (20050001897C070206.TXT) Auto-classification: Denied

    The applicant was returned to his permanent pay grade of E-3 on 12 February 1969 and he returned to the Continental United States on or about 4 July 1969. The United States Army Court of Military Review affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for 5 months and a reduction to the pay grade of E-1. Additionally, the applicant's contention that the punishment that he received was too severe compared to today's standards is incorrect.