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Decision Text

ARMY | BCMR | CY1997 | 9711154
Original file (9711154.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his general discharge under honorable conditions be upgraded to honorable. He states, in effect, he wishes to have his discharge upgraded for the purposes of obtaining Veterans educational benefits.
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 enlisted in the Regular Army on 5 September 1990 for 4 years.

During his service he received nonjudicial punishment under Article 15, UCMJ, and counseling on numerous occasions for misconduct. He was reduced to pay grade E-3.

He was arrested and convicted by civil authority for burglary of habitation and assessed five years unjudicative probation and fined $5,400.

On 26 August 1993 the applicant was recommended for discharge under the provisions of AR 635-200 (chapter 13) for unsatisfactory performance.

He received counseling on several occasions regarding his irresponsibility, tardiness, and failure to be at his place of duty on time. As a result of his continued inability to become a satisfactory and productive soldier he was discharged on 15 September 1993.

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. He may still apply

Army Regulation 15-180 provides for petitioning the Army Discharge Review Board for upgrade of the characterization or the reason and authority for discharge, or both. Application may be made with DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), within 15 years after the date of discharge or dismissal.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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
15 September 1993, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 15 September 1996.

The application is dated 18 October 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
                  Karl F. Schneider
                  Acting Director

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