| Mr. Carl W. S. Chun | Director | |
| Mr. G. E. Vandenberg | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Elzey J. Arledge | Member | |
| Mr. Richard T. Dunbar | Member |
APPLICANT REQUESTS: That his uncharacterized discharge be upgraded to fully honorable.
The applicant indicates that he is unsure of the date of discovery of the alleged error or injustice. He states that he needs the upgrade to join the National Guard and believes that would be in the interest of justice for the Board to consider this application.
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:
The applicant entered active duty on 18 March 1986 at age 23 with 12 plus years of formal grade education. He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty (MOS) 12B (Combat Engineer).
In June of 1986, the applicant’s command received notification that the applicant had not divulged his pre-service involvement with the law on six occasions. He was offered an opportunity to submit a statement on his own behalf which he did requesting continuation on active duty.
On 13 July 1986, after conferring with legal counsel the applicant acknowledged his rights and waived his right of review before an administrative separation board and to provide written statements on his own behalf.
His chain of command reviewed the evidence and recommended that he be separated from active duty for fraudulent entry and that he receive an entry-level separation. The discharge authority concurred with the recommendation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 7-17b(3).
On 22 July 1986, the applicant was discharged for fraudulent entry and given an uncharacterized discharge.
There is no indication that the applicant had applied to the Army Discharge Review Board for consideration of his case.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter.
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 22 July 1986, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 22 July 1989.
The application is dated 11 October 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
__MKP__ ___EJA__ __RTD__ CONCUR WITH DETERMINATION
| CASE ID | AR2001064753 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020411 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | Deny |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.62 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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