| Mr. Carl W. S. Chun | Director | |
| Ms. Antoinette Farley | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | |
| Ms. Margaret K. Patterson | Member | |
| Mr. Arthur A. Omartian | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to honorable. That a colonel in Gelnhausen, Germany, told him that his discharge could be upgraded. He adds, that his discharge was not too major a deal and this is how he was told he could get it upgraded. He further states that he would have upgraded his discharge sooner, but he was really lost in his alcohol addiction for the last 15 years. He also prays that he can be helped out in this matter. He adds that if his records show that he is honorably discharged, he would like to know.
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 in the Regular Army for 3 years on 11 January 1984. He completed training and was awarded military occupational specialty (MOS) 11B10, (Infantryman). On 12 April 1984, he was transferred to Germany for duty.
On 15 October 1984, he was convicted by a summary court-martial of being absent without leave (AWOL) for 9 days and of wrongfully appropriating a military vehicle. His punishment included reduction to the pay grade of E-1, forfeiture of $397.00 pay and confinement to hard labor for 28 days.
On 3 January 1985, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for assault upon a woman by grabbing her and throwing her against a wall. His punishment included forfeiture of $50.00 pay per month for two months, 14 days of restriction and extra duty.
On 18 January 1985, NJP was imposed against the applicant for failing to go to his appointed place of duty on 12, 13 and 14 January 1985. His punishment included forfeiture of $300.00 pay per month for two months, 45 days of restriction and extra duty.
The applicant was convicted by a special court-martial, of one specification of wrongfully distributing marijuana and a second specification of wrongfully possessing marijuana. He was also convicted of a third specification of violating a lawful general regulation by possessing drug paraphernalia. On 15 May 1985, he was sentenced to confinement with hard labor for 60 days, forfeiture of $413.00 pay per month for 6 months and a BCD. The convening authority approved the sentence as adjudged on 6 June 1985.
On 3 July 1985, the applicant was placed on involuntary excess leave pending appellate review.
On 16 August 1985, the United States Court of Military Review affirmed the findings of guilty, and the sentence.
On 16 December 1985, Headquarters, Armor Center and Fort Knox, published SPCM Order Number 184, announcing that the sentence had been affirmed, and since the provisions of Article 71c UCMJ, had been complied with, directed that the BCD be duly executed.
On 30 January 1986, the applicant was discharged with a BCD. He was credited with 1 year, 10 months and 3 days active military service with 79 days of lost time due to AWOL and confinement. He had 212 days of excess leave.
There is no available 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 30 January 1986, the date he was discharged from active duty. The time for the applicant to file a request for correction of any error or injustice expired 30 January 1989.
The application is dated 22 April 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 recommended 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__ ___MKP _ ___AAO_ CONCUR WITH DETERMINATION
INDEX
| CASE ID | AR2002073899 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20021001 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 1986-01-30 |
| DISCHARGE AUTHORITY | AR 635-200 chapter 3, section IV |
| DISCHARGE REASON | A144.68 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | A110.02 |
| ISSUES 1. | A123.01 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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