Search Decisions

Decision Text

ARMY | BCMR | CY1997 | 9711465
Original file (9711465.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge. He states that he had had problems at home when he was young and was unable to adjust to military life. He is now in need of medical help and cannot afford to go to a doctor.
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 2 June 1949. He was inducted into the Army on 10 April 1969.
He completed basic combat training but not advanced individual training.

On 9 June 1969, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.

On 10 July 1969, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 3 - 8 July 1969.

On 12 January 1970, the applicant was convicted by a special court-martial of being AWOL from 18 August - 18 November 1969. He was sentenced to confinement at hard labor for 6 months and to forfeit $50 pay for 6 months.

On 27 May 1970, the applicant completed a separation physical and was found qualified for separation.

On 2 June 1970, the applicant was convicted by a special court-martial of being AWOL from 15 January - 18 May 1970. He was sentenced to confinement at hard labor for 4 months and to forfeit $88 pay for 4 months.

On 5 June 1970, the applicant underwent a psychiatric evaluation. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, mentally capable of understanding and participating in any board proceedings, and psychiatrically cleared for any administrative or disciplinary action.

On an unknown date, the commander initiated separation proceedings under the provisions of Army Regulation 635-212 for unfitness. He cited the applicant’s two special court-martials, his dislike for the military, his lack of self-motivation and a negative attitude towards the military.

On 15 July 1970, 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 23 July 1970, the appropriate commander approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

On 28 July 1970, the applicant was discharged, with a discharge UOTHC , in pay grade E-1, under the provisions of Army Regulation 635-212. He had completed 3 months of creditable active service and had 384 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, UOTHC discharge was normally considered appropriate.

There is no evidence the applicant ever applied to the Army Discharge Review Board (ADRB) 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 28 July 1970, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 28 July 1973.

The application is dated 7 August 1997 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
                                                      

Similar Decisions

  • ARMY | BCMR | CY2005 | 20050003136C070206

    Original file (20050003136C070206.doc) Auto-classification: Denied

    On 24 April 1970, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate. The applicant’s military record shows that he had an extensive disciplinary history of military infraction and based on his record of indiscipline, the applicant's service clearly shows that his discharge was appropriate because the quality of service determined at the time of discharge was not...

  • ARMY | BCMR | CY2008 | 20080000719

    Original file (20080000719.txt) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 April 2008 DOCKET NUMBER: AR20080000719 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant states, in effect, that he went absent without leave (AWOL) due to family problems. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within...

  • ARMY | BCMR | CY1997 | 9710975

    Original file (9710975.rtf) Auto-classification: Denied

    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. In his application to that Board is a statement wherein he blamed the discharge on no one...

  • ARMY | BCMR | CY2006 | 20060005130C070205

    Original file (20060005130C070205.doc) Auto-classification: Denied

    However, the applicant’s DD Form 214 shows that he was discharged with an undesirable discharge on 19 January 1970 under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. As a result, there is no basis for granting the...

  • ARMY | BCMR | CY2003 | 2003085244C070212

    Original file (2003085244C070212.rtf) Auto-classification: Denied

    In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant has not presented and...

  • ARMY | BCMR | CY2005 | 20050002446C070206

    Original file (20050002446C070206.doc) Auto-classification: Denied

    Effective 10 December 1969, the unexecuted portion of the sentence to confinement to hard labor and the forfeitures were remitted by Special Court-Martial Order 1027, US Army Correctional Training Facility, Fort Riley, Kansas, dated 2 December 1969. There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation. Army Regulation 635-200, paragraph 3-7,...

  • ARMY | BCMR | CY2009 | 20090011165

    Original file (20090011165.txt) Auto-classification: Denied

    The applicant requests, in effect, that his general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable. On 18 June 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

  • ARMY | BCMR | CY2009 | 20090014288

    Original file (20090014288.txt) Auto-classification: Denied

    On 16 June 1970, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation and being drunk on duty. On 29 October 1970, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

  • ARMY | BCMR | CY2005 | 20050015616C070206

    Original file (20050015616C070206.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2006 DOCKET NUMBER: AR20050015616 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. On 15 October 1970, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate. After carefully...

  • ARMY | BCMR | CY2004 | 20040011728C070208

    Original file (20040011728C070208.doc) Auto-classification: Denied

    Linda M. Barker | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. On 28 November 1970, the applicant received notification that action was being taken to effect his administrative separation from the US Army under the provisions of Army regulation 635-212, by reason of unfitness. The applicant contends that his discharge should be upgraded because he was young, married and had a baby boy, was carefully considered and...