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ARMY | BCMR | CY1997 | 9710975
Original file (9710975.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his undesirable discharge be upgraded. He states that he was suffering from a psychiatric disability which caused his actions. He has prospered in a private business for 25 years, has married and raised two children. Many individuals support his endeavors in this matter. He states medical evidence and lay statements are attached. They are not, but this documentation is filed with his Army Discharge Review Board (ADRB) packet.
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 17 January 1968. He completed basic combat training and eventually advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).
 On 25 July 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 21 to 30 April 1968 and 16 May to 2 July 1968. He was sentenced to confinement at hard labor for 3 months, suspended.

On 15 August 1969, the applicant underwent an evaluation by a military Mental Hygiene Consultation Service. He was diagnosed as having a paranoid personality, chronic, severe, manifested by being overly suspicious and non-trusting of people. It was presumed this long-standing character and behavior disorder would tend to exist permanently. However, the examining physician found him to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and mentally capable of understanding and participating in board proceedings.

On 19 August 1969, the applicant was convicted by a special court-martial of being AWOL from 12 November to 12 December 1968, 14 December 1968 to 9 January 1969 and 13 January to 3 July 1969. He was sentenced to confinement at hard labor for 6 months and to forfeit $82 for 6 months.

During the applicant’s last period of AWOL, he had turned himself in to a civilian hospital where he was psychiatrically evaluated. The doctor diagnosed him as having a schizophrenic reaction and a paranoid personality, but found him mentally competent and knowing right from wrong and cleared for any administrative action.

On 29 August 1969, separation action under the provisions of Army Regulation 635-212, for unfitness, was initiated.

On 15 September 1969, the applicant completed a separation physical and was found qualified for separation.

On 18 September 1969, the applicant acknowledged notification of the separation action. He 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 any statements in his own behalf.

On 29 September 1969, the appropriate commander approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

On 7 October 1969, the applicant was discharged, with an undesirable discharge, in pay grade E-1, under the provisions of Army Regulation 635-212. He had completed 7 months and 13 days of creditable active service and had 403 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable, discharge was normally considered appropriate.

On 17 December 1981, the ADRB denied the applicant’s request for an upgrade of his discharge. In his application to that Board is a statement wherein he blamed the discharge on no one but himself. He was young and selfish. All he could think of was getting out and enjoying the teenage years he had missed out on by marrying early.

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 Board’s 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 17 December 1981, the date the ADRB denied his request for an upgrade. The time for the applicant to file a request for correction of any error or injustice expired on 17 December 1984.

The application is dated 13 September 1996 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




Loren G. Harrell
                                             Director
                                                      

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