| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Ms. Jennifer L. Prater | Chairperson | |
| Mr. Arthur A. Omartian | Member | |
| Ms. Regan K. Smith | Member |
APPLICANT REQUESTS: That his bad conduct discharge be upgraded to an honorable discharge. He states he was a good soldier, the top soldier in his platoon, and never had one complaint against him. However, after being harassed by a sergeant for more than a year he pushed the sergeant out of his room. He notes he did not hurt the sergeant and that his 3 years of good service should outweigh the single incident of pushing the sergeant out of the room. He maintains that the bad conduct discharge was unjust for this single offense after 3 years of good service.
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 entered active duty on 5 August 1980. The applicant successfully completed basic and advanced individual training and in February 1981 was assigned as a helicopter repairman to a unit in Hawaii. In March 1981 he was promoted to pay grade E-2 and in August 1981 was promoted to E-3.
On 1 June 1983 the applicant was convicted by a special court-martial of two counts of possession and distribution of marijuana, two counts of using disrespectful language toward a sergeant, and one count of assault. The court-martial order specifically notes that the applicant assaulted a sergeant by "shoving him up against a wall locker and striking at him in the face with his fist, and shoving him out of the room…."
The applicant's sentence included 3 months confinement, reduction to pay grade E-1, forfeiture, and a bad conduct discharge.
The applicant was placed in an excess leave status in August 1983 following release from confinement and on 24 August 1984 the bad conduct discharge was executed.
Army Regulation 635-200 states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
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.
There is no evidence, and the applicant has not provided any, which would serve as a basis to upgrade his bad conduct discharge to an honorable discharge. Contrary to the applicant's contention his bad conduct discharge was the result of more than just pushing a sergeant out of his room.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 August 1984, the date the applicant's discharge was executed. The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1987.
The application is dated 11 March 2002 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
__JLP___ __AAO __ __RK __ CONCUR WITH DETERMINATION
| CASE ID | AR2002070572 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020604 |
| 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. |
ARMY | BCMR | CY2009 | 20090006627
The applicant requests that his under other than honorable conditions discharge be upgraded to general. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. The applicant's record of service included over 60 days of time lost due to AWOL.
ARMY | BCMR | CY2013 | 20130009231
The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14 by reason of misconduct - civilian conviction with an under other than honorable conditions characterization of service. The applicant provides a letter, dated 30 April 2013, to himself from the VA Regional Office, Cheyenne, WY, wherein a VA manager stated the applicant's records showed he received an under other than...
ARMY | BCMR | CY2002 | 2002077496C070215
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. In September 1981 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. The applicant's contention that he was depressed,...
ARMY | BCMR | CY2007 | 20070012132C080213
He was sentenced to a bad conduct discharge. On 22 August 1989, the Army Discharge Review Board denied the applicants request for an upgraded discharge. Considering his first conviction by court-martial, even while acknowledging that it appears his second conviction of 13 February 1979 had not completed the appellate process, the discharge resulting from his third conviction by court-martial appropriately characterizes the misconduct for which he was convicted.
ARMY | BCMR | CY2009 | 20090003528
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his 1990 discharge under other than honorable conditions be upgraded to a general discharge. The applicant states that after 19 years of thinking to himself why would anyone push so hard to have a PFC court-martialed for only breaking barracks policy he came to the conclusion that because he was black and the female was caucasian he was given no option.
ARMY | BCMR | CY2003 | 2003087939C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. His record does not indicate the basis for the confinement. 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 | CY2009 | 20090000068
IN THE CASE OF: BOARD DATE: 5 May 2009 DOCKET NUMBER: AR20090000068 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. In accordance with Title 10 of the U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not...
ARMY | BCMR | CY2003 | 2003087863C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 24 November 1981 the applicant's commanding officer notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), and that he receive a General Discharge Certificate. The applicant has not presented and the records do not contain sufficient...
ARMY | BCMR | CY2013 | 20130010880
At the time of his enlistment, he was 17 years of age. On 27 June 1972 after consulting with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 10. ___________X______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2014 | AR20140018949
IN THE CASE OF: BOARD DATE: 22 January 2015 DOCKET NUMBER: AR20140018949 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). On 8 March 2007, based on the applicant's failure to submit a statement, the certifying official stated he felt his decision to permanently disqualify the applicant from the PRP was still valid and referred the case to the reviewing official.