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 applicants 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
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