| Mr. Carl W. S. Chun | Director | |
| Mr. G. E. Vandenberg | Analyst |
| Mr. Mark D. Manning | Chairperson | |
| Mr. Lester Echols | Member | |
| Ms. Karen Y. Fletcher | Member |
APPLICANT REQUESTS: That his discharge be changed from under other than honorable conditions (UOTHC). He states, in effect, that he had two periods of service and the discharge document (DD Form 214) does not define what an UOTHC means or what period of enlistment it covers.
The applicant indicates that the date of discovery of the alleged error or injustice was July 2001. He states that "the wording of the discharge makes it very unclear of what other than honorable means" as to why it 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 record shows that:
The applicant entered active duty on 30 January 1975 on a three-year active duty obligation. He completed basic combat training and advanced individual training (AIT) with award of the military occupational specialty (MOS) 72E (Telecommunication Center Specialist). The applicant attained the rank of specialist four on 1 August 1976.
He reenlisted on 26 August 1977. At this time the applicant was issued a DD Form 214 that showed that he had served honorably for 2 years, 6 months, and 26 days.
On 20 January 1978, the applicant again attended AIT for training and was awarded the MOS of 94B (Cook).
The applicant's record shows that he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice on 3 September 1975 for failure to go to his appointed place of duty and again on 8 December 1978 for willfully disobeying a lawful order from a noncommissioned officer.
He was reported absent without leave (AWOL) from 23 May 1979 through 12 November 1979, and was shown to be in an excess leave status from 20 November 1979 through 11 January 1980.
The applicant's DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200, chapter 10, under other than honorable conditions, by reason of an administrative discharge for conduct triable by a court-martial on 11 January 1980. He has served 1 year, 10 months, and 22 days on this enlistment.
There is no evidence that the applicant applied to the Army Discharge Review Board for review 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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.
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.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 of that regulation sets forth the standards and provisions for the characterization of a soldier's period of service. In pertinent part, section 3-7c describes the justification for issuance of an Under Other Than Honorable Conditions discharge as a significant departure from the conduct expected of a soldier.
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 January 1980, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 11 January 1983.
The application is dated 6 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. 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
_MDM___ __LE ___ __KYF __ CONCUR WITH DETERMINATION
| CASE ID | AR2001065966 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020523 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.7100 |
| 2. | 144.6301 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2014 | 20140016896
On 25 February 1980, the applicant's commander informed him he was initiating separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program). The applicant requests to be paid for about 80 days of leave, which he asserts he accrued while on active duty and should have been paid on separation. Regarding the accrued leave for which the applicant could be paid, neither the applicant's record nor...
ARMY | BCMR | CY2010 | 20100026353
The applicant requests that his dishonorable discharge be upgraded to a general discharge. The applicant provides no additional evidence with his application. He completed basic training at Fort Bliss, Texas, and remained at Fort Bliss for advanced individual training (AIT).
ARMY | BCMR | CY2008 | 20080002541
The applicant requests, in effect, an upgrade of his discharge and correction of the narrative reason for separation to show he was discharged for medical and mental reasons. On 19 September 1979, the applicant departed his AIT unit in an AWOL status and was reported DFR on 18 October 1979. The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.
ARMY | BCMR | CY2004 | 20040003152C070208
The applicant submitted a statement with his discharge request. On 28 March 1980, the applicant was discharged accordingly. However, there is no evidence of record to support this claim.
ARMY | BCMR | CY2002 | 2002068202C070402
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. On 13 June 1980, he was issued a DD Form 214 and released “from IADT under the Reserve enlistment program upon completion of his MOS training and a minimum of 12 weeks IADT.” His DD Form 214 shows that he had 11 months and 26 days of active duty service. The time for the applicant to file a request for correction of any error or...
ARMY | BCMR | CY2006 | 20060004042C070205
He was sentenced to perform 45 days of extra duty, to be restricted for 45 days, and to forfeit $311 pay per month for 1 month. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Evidence of record shows the applicant had three nonjudicial punishments, one summary court-martial conviction, and one special court-martial conviction prior to being sent to the Retraining Brigade.
ARMY | BCMR | CY2014 | 20140007958
The applicant requests an upgrade of his discharge to a general discharge. The form states the applicant had not done anything since 25 July 1979. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.
ARMY | BCMR | CY2013 | 20130014292
The applicant requests an upgrade of his under other than honorable conditions discharge. In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.
ARMY | BCMR | CY2008 | 20080013207
He further stated that he suffered a back injury during AIT at Fort Gordon, Georgia, which should have warranted his receiving a medical discharge instead of an UOTHC discharge; however, the Army did not seem to care about him or his family. The separation documents regulation stipulates that the separation authority may authorize a GD or HD to members separated under the provisions of Chapter 10 if it is supported by the members overall record of service; however, an UOTHC discharge...
ARMY | BCMR | CY2008 | 20080006729
The applicant requests in four separate applications (DD Forms 149) that her DD Form 214 be corrected to reflect that she was the honor graduate of her advanced individual training (AIT) class; that she completed Spanish I and II training at Legg Middle School in Coldwater, Michigan; that she was a member of the Womens Army Corp (WAC); and that the term Intelligence be added to her DD Form 214. The applicant was honorably discharged on 17 January 1980, under the provisions of Army...