| Mr. Carl W. S. Chun | Director | |
| Mrs. Carolyn G. Wade | Analyst |
| Ms. Karol A. Kennedy | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Ms. Tracey L. Pinson | Member |
APPLICANT REQUESTS: That his under other than honorable conditions characterization of service be upgraded to honorable.
In support of his application, the applicant submitted statements on his behalf, a good conduct certificate from the Puerto Rico police force, copies of his medical treatment records, and a copy of his DD Form 214.
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 on 20 August 1971 for a period of 3 years. On 13 September 1971, during basic combat training (BCT), the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for destroying a pillowcase, the property of the United States government, and for disobeying a lawful order of his superior noncommissioned officer to stop pillow fighting. His punishment consisted of forfeiture of $24.00 pay per month for 1 month (suspended until 10 October 1971) and 7 days’ restriction and extra duty. He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Sill, Oklahoma.
On 24 March 1972; following completion of all military training, the applicant was assigned to the United States (US) Army Overseas Replacement Station, Fort Dix, New Jersey. Following a period of leave in Puerto Rico, he was to report to Fort Dix on 11 April 1972.
Shortly after his arrival in Puerto Rico, the applicant began to experience anxiety and nervousness due to his fears of possibly being assigned to Vietnam. On 11 April 1972, following an episode of violence against his wife, he was admitted to the Veterans Administration (VA) Hospital, San Juan, Puerto Rico, and was attached to the US Patient Holding Detachment, Third US Army-Puerto Rico, Fort Buchanan, Puerto Rico. Following a 2-month stay in the VA hospital, he was diagnosed with "adult situational reaction."
On 11 June 1972, the applicant was transferred to the Medical Holding Company, US Army Hospital Special Treatment Center, Fort Gordon, Georgia. He reported to the Medical Holding Company on 12 June 1972 for hospitalization and further treatment.
On 30 June 1972, the applicant underwent a medical and psychiatric examination for separation that revealed no evidence of a psychiatric condition; however, he was found to have an "immature personality, chronic, severe." The psychiatrist stated that the applicant knew right from wrong, was able to adhere to the right, and was able to participate in administrative processes and testify in his own defense.
On 11 July 1972, the unit commander of the Medical Holding Company recommended that the applicant be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212 for unsuitability with a general discharge. There is no indication in the record as to the disposition of the unit commander’s recommendation.
On 31 July 1972, the applicant was discharged from the hospital, returned to duty, and assigned to Fort Knox, Kentucky.
On 9 August 1972, the applicant departed his unit at Fort Knox absent without leave (AWOL) and remained AWOL until he was apprehended on 9 March 1973 and returned to military control at Fort Gordon, Georgia.
On 13 March 1973, the applicant was charged with being AWOL from 9 August 1972 through 9 March 1973 and was placed in pre-trial confinement at Fort Gordon.
On 15 March 1973, having consulted with legal counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial. He submitted a statement in his own behalf stating that he was making this request of his own free will; that he did not desire to stay in the Army any longer due to family problems; that his counsel had explained everything to him in Spanish; and that he understood the type of discharge that he would receive.
On 20 March 1973, the applicant underwent a medical examination, at which time he indicated that his present health was good. The applicant was found to have no residual disabilities and was cleared for separation.
On 24 April 1973, the applicant’s chain of command recommended approval of the applicant’s request for discharge with a UD.
On 26 April 1973, the appropriate authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial with a UD. Accordingly, on 8 May 1973, the applicant was discharged from the Army. He was credited with 9 months and 17 days of active military service and 332 days of lost time.
On 3 June 2002, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The request was beyond the ADRB’s 15-year statute of limitations and he was referred to this Board.
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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
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:
1. The Board noted the applicant's contention that emotional and family problems impaired his ability to serve. Even if true, the applicant had other avenues to seek assistance without committing the misconduct that caused his separation from the Army. Prior to returning to duty, he was psychiatrically cleared and it was also noted that he knew right from wrong and could adhere to the right.
2. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 May 1973, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 8 May 1976 [had the applicant filed his request for an upgrade with the ADRB within its 15-year statute of limitations (8 May 1988), he would have had until 8 May 1991 to file with this Board. By any calculation, the applicant has failed to timely file].
5. The application is dated 24 June 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.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__kak___ __mhm___ __tlp___ CONCUR WITH DETERMINATION
| CASE ID | AR2002075899 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030128 |
| TYPE OF DISCHARGE | UD |
| DATE OF DISCHARGE | 19730508 |
| DISCHARGE AUTHORITY | AR 635-200, chapter 10 |
| DISCHARGE REASON | A70.00 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.9405 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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