| Mr. Carl W. S. Chun | Director | |
| Mr. Lee Cates | Analyst |
| Mr. Roger Able | Chairperson | |
| Ms. Barbara J. Lutz | Member | |
| Mr. William D. Powers | Member |
APPLICANT REQUESTS: In effect, that his records be corrected to show that he was honorably discharged. He contends the punishment was “too harsh”. Counsel indicates that the Board’s attention is invited to the injustice raised by the applicant. Counsel opines that this submission, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review and rest on the evidence of record.
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:
On 7 October 1977, he enlisted in the Army. He completed his required training and was awarded military occupational specialty 62E (Construction Specialist).
On 23 February 1979, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave for the period 14 to 18 January 1979. His punishment was a reduction to pay grade E-1, restriction and extra duty.
On 11 May 1979, he accepted NJP under Article 15, UCMJ for theft of cash and other property on 14 April 1979 and use of marijuana on 27 April 1979. His punishment included a reduction to pay grade E-1, forfeiture of $100 pay, restriction and extra duty.
On 29 August 1979, he was convicted by a Special Court-Martial of theft of cash on three occasions on 9 and 10 July 1979 from his fellow soldiers. He pled guilty of all charges. His sentence included confinement at hard labor (CHL) for 5 months, forfeiture of $175 pay per month for 6 months and a Bad Conduct Discharge (BCD).
On 16 October 1979, his sentence to a BCD, forfeiture of $175 pay per month for 2 months, CHL for 75 days and reduction to pay grade E-1, was approved.
On 24 January 1980, the Court of Military Review affirmed the finding of guilty; however, they affirmed only so much of the approved sentence as provided for the BCD, CHL for 75 days, and forfeiture of $175 pay per month for 2 months, thus eliminating the addition of the reduction to pay grade E-1, since that is a provision of his CHL.
On 12 November 1980, he was discharged, with a BCD, under Army Regulation 635-200, chapter 11, based on his conviction by a court-martial. His separation document indicates he had 2 years, 11 months and 1 day of creditable service and 65 days of lost time.
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 11 provided, in pertinent part, for the separation of personnel with approved sentences to a BCD, after completion of the appellate review and the sentence had been affirmed.
The statutory authority under which this Board was created (Title 10, United States code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. The Board may grant clemency in highly meritorious cases.
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.
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 12 November 1980, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 12 November 1983.
The application is dated 30 November 2000 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
__ra___ ___bl____ ___wp___ CONCUR WITH DETERMINATION
| CASE ID | AR2001051373 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010308 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | (NC, GRANT , DENY, GRANT PLUS) |
| REVIEW AUTHORITY | |
| ISSUES 1.110 | BCD up |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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