| 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: To have his "military record revised or straighten out if possible to reverse what ever is negative on [his] record." In effect, the applicant is requesting that his undesirable discharge be upgraded. He makes no additional statements and 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 enlisted and entered active duty on 28 July 1971. He was 18 years old at the time of his enlistment and had 11 years of formal education. The applicant successfully completed basic and advanced individual training. However, while undergoing advanced individual training he was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for missing a unit formation. In spite of his UCMJ action the applicant was promoted to pay grade E-2 and received excellent conduct and efficiency rating during training.
In December 1971, following completion of training, the applicant was assigned to Fort Knox, Kentucky as a cook. Shortly after his arrival, he was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty. In May 1972 the applicant was punished again under Article 15 of the UCMJ for failing to go to his appointed place of duty on four different occasions. His punishment included reduction to pay grade E-1.
On 19 June 1972 the applicant departed AWOL (absent without leave). He was dropped from the rolls of the Army on 18 July 1972. On 27 July 1972 he was apprehended by civilian authorities in Catonville, Maryland and returned to military control.
On 14 August 1972, shortly after charges were preferred for the applicant's original period of AWOL, he departed AWOL again. He was apprehended by military authorities in Baltimore, Maryland and returned to military control on
28 November 1972.
When charges were again preferred, which also incorporated the original AWOL period, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request
acknowledged he understood the nature and consequences of the undesirable discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. He did not submit any statements on his own behalf.
A 4 December 1972 separation physical examination found him medically qualified for separation.
The applicant's request for separation was approved and on 15 January 1973 he was discharged "under conditions other than honorable" under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
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. An undesirable discharge was normally considered appropriate.
There is no evidence, and the applicant has not presented any, which would serve as a basis to upgrade his discharge or expunge any adverse information contained in his military record.
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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 January 1973, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 15 January 1976.
The application is dated 13 December 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
__JLP___ __AAO __ __RKS __ CONCUR WITH DETERMINATION
| CASE ID | AR2002071598 |
| 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. |
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