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ARMY | BCMR | CY1997 | 9711151
Original file (9711151.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge. He states, in effect, that he had reasons for going absent without leave (AWOL) – his commander wouldn’t give him time off to get married; his military charter flight was completely booked so he had to take the next flight out; he had to take care of his mother-in-law; and his wife went into labor and there were medical complications. At that time he felt that the activities that surround human life were much more important than his Active Duty Status. He now deeply regrets his actions.
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 born on 14 September 1953. He completed 12 years of formal education. He enlisted in the Regular Army on 8 May 1973 for 4 years. He completed basic training and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).

On 5 March 1974, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties.

Between 18 July and 18 October 1974, the applicant accepted non-judicial punishment under Article 15, UCMJ for being AWOL for the periods 11 - 15 July 1974, 29 - 31 July 1974 and 8 - 14 October 1974, respectively.

On 7 November 1974, the applicant completed a separation physical was found qualified for separation.

On 20 November 1974, the applicant received a bar to reenlistment. The company commander cited his three Article 15s, said he was a poor soldier who needed constant supervision to maintain marginal standards of acceptability and that his personal appearance was slovenly and he needed to be continually counseled on his personal hygiene.

The applicant was AWOL again from 20 - 29 January 1975.

The discharge proceedings are not available.
On 27 February 1975, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 13, for unfitness - frequent involvement of a discreditable nature with authorities with a discharge UOTHC. He had completed 1 year, 8 months and 28 days of creditable active service and had 22 days of lost time.

Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

It is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant’s overall record.

There is no evidence the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

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 27 February 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 27 February 1978.

The application is dated 23 December 1996. 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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