| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Raymond V. O’Connor | Chairperson | |
| Mr. Stanley Kelley | Member | |
| Mr. John P. Infante | Member |
APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded. He states that he was not allowed to go on leave to attend a funeral and "so went AWOL [absent without leave]." The applicant's DD Form 149 (Application for Correction of Military Record) is dated 28 March 2001, but was submitted with a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) dated 29 March 2002. On the DD Form 293 the applicant indicated that he was not permitted to attend the funeral of his "best friend" so went AWOL. He also notes that as he is older now, he would like to pursue any benefits that he might utilize as a result of his "good years of service." 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 on 15 January 1963, at the age of 21, with 10 years of formal education. He was granted a moral waiver for gas theft in 1960, and consumption of alcohol by a minor in 1962, in order to be inducted.
The applicant successfully completed basic and advanced individual training. He received excellent conduct and efficiency ratings while in training. He was promoted to pay grade E-2 in May 1963 and in June 1963 was assigned to Fort Ord, California.
The applicant departed AWOL on 17 July 1963 and returned to military control on 15 August 1963. He was convicted by a special court-martial as a result of the AWOL charge. In March 1964 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for 4 days of AWOL in March 1964. The applicant again departed AWOL in April 1964 and returned to military control in July. He was convicted by a special court-martial as a result of the AWOL.
While in confinement, which was part of his second court-martial sentence, the applicant's commander initiated action to administratively separate the applicant from the Army, under the provisions of Army Regulation 635-208, for unfitness. The applicant acknowledged receipt of the proposed separation, consulted with counsel, and acknowledged that he understood that as a result of his "other than honorable" discharge, he could be deprived of many rights and benefits as a veteran under both Federal and State law.
The commander cited the applicant's more than 200 days of lost time, two special courts-martial, and difficulty with civilian authorities, as the basis for his recommendation.
The recommendation was approved and on 19 November 1964 the applicant was discharged "under conditions other than honorable." He was issued an undesirable discharge certificate.
Information from an FBI file, contained in the applicant's record, indicates that he was charged with possession of marijuana on two occasions in 1968. The disposition of those charges is not reflected on the FBI document.
In 1988 the applicant appealed to the Army Discharge Review Board to have his discharge upgraded. The results of that appeal were not in records available to the Board. A review of the Army Discharge Review Board files indicates that his request was received on 2 August 1988 and closed on 4 August 1988. However, the file does not indicate the disposition.
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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered in 1988, the year the Army Discharge Review Board closed in application to that Board. The time for the applicant to file a request for correction of any error or injustice expired in 1991.
The application to this Board was dated in March 2001, although the new application to the Army Discharge Review Board was dated in March 2002. 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
__RVO__ __SK ___ __JPI ___ CONCUR WITH DETERMINATION
| CASE ID | AR2002071347 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020718 |
| 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. | 187.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2014 | 20140008155
On 3 March 1964, a board of officers recommended the applicant be discharged from the service under the provisions of Army Regulation 635-208 because of unfitness with an undesirable discharge. While the separation authority could grant a general, under honorable conditions discharge or honorable discharge, if warranted by the member's overall record of service, the issuance of an undesirable discharge was normally considered appropriate for members separated under these provisions. Army...
ARMY | BCMR | CY2002 | 2002068376C070402
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. He also had 193 days of lost time due to being AWOL and in civil confinement. The applicant has not presented and the records do not contain sufficient...
ARMY | BCMR | CY1995 | 9511185C070209
EVIDENCE OF RECORD: The applicant's military records show: He enlisted in the Regular Army on 23 October 1961 weighing 211 pounds, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4. Army Regulation 635-40, paragraph 4-3a, states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other...
ARMY | BCMR | CY2001 | 2001062585C070421
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. The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant has not presented and...
ARMY | BCMR | CY2002 | 2002084350C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant did not apply to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations. 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...
ARMY | BCMR | CY1997 | 9710231
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 he 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. The applicant stated he received counsel and acknowledged he would be discharged under conditions other than honorable, under Army Regulation 635-208, and...
ARMY | BCMR | CY2006 | 20060000522C070205
The applicant requests that his records be corrected by upgrading his discharge to honorable. The applicant states that the military lost both he and his wife’s pay records leading to his discharge. The Board notes that the applicant has failed to submit evidence in support of his allegations that he was advised that his discharge would be upgraded after 2 years.
ARMY | BCMR | CY1995 | 9509998C070209
He was also advised of the effects of a discharge UOTHC. On 5 October 1964, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206, due to a conviction by a civil court with a discharge UOTHC. 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.
ARMY | BCMR | CY2005 | 20050017729C070206
The applicant requests that his records be corrected by upgrading his bad conduct discharge to general, paying him lost wages for the 89 days of lost time from 3 January 1963 to 1 April 1963 while he was confined by civil authorities and by showing he was qualified with the rifle and attended jump school and parachute rigger school. Army Regulation 635-204, in effect at the time, provided in pertinent part, that enlisted personnel would be discharged with a bad conduct discharge pursuant to...
ARMY | BCMR | CY1997 | 199711063C070209
BOARD DATE: 15 April 1998 DOCKET NUMBER: AC97-11063 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. 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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to...