| Mr. Carl W. S. Chun | Director | |
| Mr. Edmund P. Mercanti | Analyst |
| Ms Jennifer L. Prater | Chairperson | |
| Mr. Hubert O. Fry | Member | |
| Ms. Gail J. Wire | Member |
APPLICANT REQUESTS: That his Bad Conduct Discharge (BCD) be corrected to a medical retirement. The applicant states that while on active duty, he was treated for migraine headaches, dizzy spells, and lapses of memory. When he was diagnosed as having sinus problems, he was given a medication which caused him to become depressed and stressed out. He also was mentally retarded and suffered from paranoid schizophrenia, mental illness, and bi-polar disorder; conditions which were not diagnosed until after he was discharged. He turned to alcohol and illegal drugs to cope with life, which resulted in him firing a pistol in the air during a drunken stupor.
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 enlisted in the Regular Army on 27 October 1971. At the time of his enlistment he was administered the Armed Forces Qualification Test (AFQT), in which he scored a 22, which made him a mental category IV, which was the next to lowest mental category which could be assigned. He had completed three years of high school. He was awarded the military occupational specialty of light weapons infantryman and was stationed in Alaska.
He accepted nonjudicial punishment (NJP) under Article 15, UCMJ, on six occasions, for failure to go at the time prescribed to his appointed place of duty (two specifications); for having in his possession two ounces of marijuana; for being absent without leave (AWOL) (three specifications); for missing unit movement; for assaulting a fellow enlisted soldier; and for being out of uniform.
He was convicted by a special court-martial on 15 September 1974 of carrying a concealed firearm; of storing a loaded firearm in his room; of striking a fellow soldier with his foot; of discharging a firearm in a public place; of communicating a threat to a fellow enlisted soldier by telling him he would “pay $500.00 to have [the other soldier] killed if he [the applicant] went to jail” and “[The other soldier] might be found dead at any time;” and of communicating a threat to a fellow enlisted soldier by telling him “Remember, my boys will get you and kill you if I go to jail” and “I won’t be in jail long and I will get you when I get out.”
His sentence consisted of a BCD, confinement at hard labor for 5 months, forfeiture of $200.00 a month for 5 months, and reduction from pay grade E-2 to pay grade E-1.
The appropriate authority approved and executed the findings and sentence of the court-martial and the applicant was issued a BCD on 18 December 1975. The applicant had 3 years, 8 months and 5 days of creditable service and 167 days of lost time.
Army Regulation 635-40, paragraph 4-1, provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.
Army Regulation 635-40, paragraph 4-2 provides that a soldier may not be referred for, or continue disability processing if under sentence of dismissal or punitive discharge. If the sentence is suspended the soldier’s case may be referred for disability processing. A copy of the order suspending the sentence my be included in the soldier’s records. If action is taken to vacate the suspension is started after the case is forwarded for disability processing, the physical evaluation board serving the area must be promptly notified to stop disability processing.
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 18 December 1975, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 18 December 1978.
The application is dated 7 November 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.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
___gjw_____ ___hof ____jlp__ CONCUR WITH DETERMINATION
| CASE ID | AR2001064041 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020723 |
| 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. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2002 | 2002071686C070403
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. Nevertheless, the applicant could not have been referred for disability processing because of the nature of his offenses, for which he received a bad conduct...
ARMY | BCMR | CY2013 | 20130008047
He enlisted and worked hard to always do a good job. While in Kuwait, he called his wife who told him she was cheating on him and that he should forget about her. A warrant officer in the United States Army states that the applicant must have another opportunity to serve his nation because he has always been a "go-to" Soldier who sacrifices his personal time to assist fellow Soldiers.
ARMY | BCMR | CY2001 | 2001056145C070420
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. 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. ...
ARMY | BCMR | CY2010 | 20100029014
The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record. Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.
ARMY | BCMR | CY2014 | 20140004701
The physician stated the applicant was being seen for right neck pain. b. Paragraph 42 (Soldiers with suspended sentences) states a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge. The evidence of record shows the applicant was convicted by a GCM of being AWOL/deserting in an attempt to avoid deployment and he was ordered to be discharged with a BCD.
ARMY | BCMR | CY2013 | 20130019417
The applicant requests an upgrade of his bad conduct discharge (BCD) to a general discharge (GD). On 2 September 1974, Headquarters, 1st Armored Division, issued Special Court-Martial Order Number 138, which shows he pleaded not guilty but was found guilty of: * assaulting a military policemen in the performance of his duty by striking him in the head with his shoe * attempting to steal stereo equipment from fellow Soldiers with a total value of about $350.00 * wrongfully entering a room,...
USMC | DRB | 2009_Marine | MD0902247
DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. For additional information, call 1-877-222-VETS (8387).This case was processed and adjudicated in accordance with Section 512 of the National Defense Authorization Act for Fiscal Year 2010.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the...
ARMY | BCMR | CY2001 | 2001051914C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board considered the following evidence: 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.
ARMY | BCMR | CY2012 | 20120001952
The applicant requests an upgrade of his discharge. The applicant provides, in support of his application, medical records, excerpts from the record of trial, a letter from a female Soldier who served in the new unit with the applicant, a letter of support from a medical doctor, and medical literature about head injuries. The available evidence is insufficient to demonstrate that he was discriminated against or that his chain of command denied him medical treatment or support in handling...
USMC | DRB | 2010_Marine | MD1001326
The Applicant’s combat service and PTSD were considered and did mitigate the effect of the misconduct in the final characterization of his service as Under Other Than Honorable Conditions vice a Bad Conduct Discharge. As such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge was not appropriate and is not warranted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing,...