| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Raymond J. Wagner | Chairperson | |
| Mr. Kenneth W. Lapin | Member | |
| Ms. Paula Mokulis | Member |
APPLICANT REQUESTS: That his 1979 discharge be reviewed. He states, in effect, that his initial period of active service was characterized as honorable but he received a bad conduct discharge while undergoing training during his second period of active duty. He notes that he was not court-martialed. The applicant states he "was having PTSD problems” and “was very ill at [the] time.” He states that may have contributed to his discharge. He states that he has undergone counseling at the VA for the past 16 years and “would like to resolve this.” He submits no evidence to support his request.
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 served an initial period of active duty between 1968 and 1969. He was released from that initial period of active duty with an honorable characterization of service.
He reenlisted in February 1979. In July 1979 the applicant’s unit commander recommended the applicant “be separated from the service by voiding his enlistment.” The commander cited the applicant’s concealment of “the fact that he had been treated for severe mental emotional problems” and that he “was treated as an outpatient at the Cincinnati VA Day Hospital” as the basis for his recommendation.
The commander’s recommendation was approved on 10 July 1979. The approval authority directed that the applicant’s enlistment be voided. He noted the “reason and authority for voidance is Section II, Chapter 14, AR 635-200….”
The applicant’s enlistment was voided on 11 July 1979. His service was not characterized. He was not issued a discharge certificate.
Army Regulation 635-200, Chapter 14, then in effect, authorized designated commanders to “void fraudulent enlistment/reenlistments when the service of the member is of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge….”
The applicant did not receive a bad conduct discharge in 1979. His enlistment was voided. There is no evidence, and the applicant has not provided any, which would serve as a basis to issue him a discharge certificate or characterize his brief period of military service in 1979.
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 11 July 1979, the date applicant’s enlistment was voided. The time for the applicant to file a request for correction of any error or injustice expired on 11 July 1982.
The application is dated 20 June 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 his 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 his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
_RJW___ __KWL__ __PM ___ CONCUR WITH DETERMINATION
| CASE ID | AR2001059114 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010920 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 142.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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