| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Lester Echols | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge. He states that he gave over a year of good service and that he made a mistake going AWOL (absent without leave). He submits no evidence in support of 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 was inducted and entered active duty on 16 January 1970 when he was nearly 20 years old. He had 10 years of formal education and a GT (general technical) score of 123.
The applicant successfully completed basic and advanced individual training and in June 1970 was assigned to Fort McClellan, Alabama as a ward attendant. Between August 1970 and November 1971 the applicant accumulated more then 300 days of lost time due to AWOL. He was punished once under Article 15 of the UCMJ (Uniform Code of Military Justice) for one of his periods of AWOL.
In December 1971, when charges were preferred for a period of AWOL between December 1970 and November 1971, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. He did not submit any statements in his own behalf. His request was approved on 12 January 1972 and on 18 January 1972 the applicant again departed AWOL. He was discharged in absentia on 7 February 1972.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
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.
The applicant's discharge was accomplished in accordance with appropriate laws and regulations with no evidence of error or injustice.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 February 1972, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 7 February 1975.
The application is dated 9 August 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
__AAO__ __LE ___ __JTM _ CONCUR WITH DETERMINATION
| CASE ID | AR2001061348 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20011127 |
| 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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