| Mr. Carl W. S. Chun | Director | |
| Mr. Lee Cates | Analyst |
| Mr. Walter T. Morrison | Chairperson | |
| Mr. Arthur A. Omartian | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to general, under honorable conditions. He states he only had problems with returning back to his unit after leave. He made a few mistakes, as he was young and stupid, but he learned from them.
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 30 September 1970, he enlisted in the Army. He completed his required training and was awarded military occupational specialty 76Y (Armor/Unit Supply Specialist). He was advanced to pay grade E-4 effective 20 July 1971.
During the period 18 October 1971 to 29 May 1972, he served in a unit in the Republic of Korea.
On 24 March 1972, he was convicted by a Special Court-Martial (SPCM) of two specifications of disobeying a lawful order on 5 January 1972 and two specifications of causing a breach of peace on 5 January 1972. His sentence included confinement at hard labor for 3 months, which was suspended for 6 months, reduction to pay grade E-1, and a forfeiture of $100 pay per month for 3 months. The suspension was vacated.
On 18 December 1972, he was convicted by a SPCM of being absent without leave for the periods 10 to 12 October and 24 October to 6 November 1972. His sentence included a forfeiture of $50 pay per month for 3 months, hard labor without confinement for 30 days and restriction to his unit for 30 days.
On 1 May 1973, a physical examination cleared the applicant for separation.
On 9 May 1973, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13 for frequent involvement in incidents of a discreditable nature with military authorities.
On 18 June 1973, the appropriate separation authority approved his discharge and directed his reduction to pay grade E-1 and discharge under conditions other than honorable (Undesirable Discharge Certificate).
On 20 June 1973, he was discharged under conditions other than honorable in pay grade E-1. His separation document shows he had 2 years, 4 months and 4 days of creditable service and 139 days of lost time.
This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.
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 20 June 1973, the date he was discharged from active service. The time for the applicant to file a request for correction of any error or injustice expired on 20 June 1976.
The application is dated 15 January 2001 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. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board
determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit the application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
_wtm____ _jtm____ _aao___ CONCUR WITH DETERMINATION
| CASE ID | AR2001052110 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010731 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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