| Mr. Carl W. S. Chun | Director | |
| Mr. Lee Cates | Analyst |
| Mr. John N. Slone | Chairperson | ||
| Mr. Ronald E. Blakely | Member | ||
| Mr. Lawrence Foster | Member |
APPLICANT REQUESTS: That his general under honorable conditions discharge be upgraded to honorable. He provides a copy of a memorandum for the commander, 2d Armored Division, dated 31 January 1994 from his defense counsel, at the time.
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:
On 3 April 1991, the applicant enlisted in the Army and was trained as an Armor Crewman.
On 1 December 1993, he was convicted by a Special Court-Martial of assault with a means likely to product death or grievous bodily harm, being disorderly, and unlawfully striking a soldier with glass from a glass bottle on the leg on 22 June 1993. His sentence included a forfeiture of $543 pay per month for 4 months, reduction to pay grade E-1, confinement at hard labor for 4 months and a bad conduct discharge (BCD).
On 24 March 1995, he was discharged with a BCD under Army Regulation 635-120, based on his court-martial conviction. His separation document indicates he had 3 years, 8 months and 19 days of creditable service and 92 days of lost time.
On 10 October 1997, the Army Discharge Review Board found his discharge to be proper but inequitable and recommended an upgrade to general, under honorable conditions.
On 18 October 1997, his discharge was upgraded accordingly.
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.
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 18 October 1997, the date the ADRB upgraded his BCD to general. The time for the applicant to file a request for correction of any error or injustice expired on 18 October 2000.
The application is dated 16 May 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 the 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 the application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
_JNS____ _REB___ _LF_____ CONCUR WITH DETERMINATION
| CASE ID | AR2002075262 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030225 |
| TYPE OF DISCHARGE | GD |
| DATE OF DISCHARGE | 19950324 |
| DISCHARGE AUTHORITY | AR 635-120 |
| DISCHARGE REASON | As a result of a court-martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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