| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Ms. Karol A. Kennedy | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Ms. Tracey L. Pinson | Member |
APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded. He states, in a self-authored statement, that he was recruited to join the "All Volunteer Army" in 1973 by a recruiter in Smithfield, North Carolina. He states that in spite of being classified as "4-F" his recruiter changed his classification to "1-A" by "putting a part of another classification card in part (1-A)." He states that all he wanted to do was serve in the military, that jobs were scarce, and he was about to lose his house. He notes he was "slow to learn and couldn't adjust to military ways of life." He states that he accepted the "Chapter 10 order by officials in [his] court hearing" but was not aware that "it was a[n] undesirable discharge." He states that he is now 53 years old, suffering from depression, and does not believe he should have received an undesirable discharge. Other than his self-authored statement, the applicant 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 for a period of three years on 8 March 1973. His enlistment contract included training as a cook. The applicant, a high school graduate, was days away from turning 24 years old at the time of his enlistment. Although his GT (general technical) score was 67, he was found mentally and medically qualified for enlistment in the Army.
The applicant successfully completed basic training at Fort Jackson, South Carolina. He received excellent conduct and efficiency ratings while in basic training.
On 25 May 1973 the applicant was assigned to another unit at Fort Jackson for the purpose of advanced individual training. On 11 June 1973 he was reported as being absent without leave. He returned to military control on 14 June and was punished under Article 15 of the Uniform Code of Military Justice. On
19 June 1973 he was again reported as being absent without leave.
Civilian authorities apprehended the applicant on 1 August 1973. When charges were preferred, 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.
In a statement submitted on his own behalf he noted that he just wanted out of the Army and that he would continue to "screw up" until he was discharged. He said he just couldn't follow direct orders and would get nervous when he was told to do something and then forgot.
The medical history, which he submitted for his medical examination for separation, indicated he suffered from depression and excessive worry. However, the physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.
According to the applicant's administrative separation package, he again departed absent without leave on 14 August 1973, prior to completion of his separation processing. The applicant's request for separation was approved and on 5 September 1973 the applicant was discharged under other than honorable conditions. He had apparently returned from being absent without leave because he authenticated his separation document. He was issued an undesirable discharge certificate. At the time of his separation he had less than 5 months of creditable service and more than 45 days of lost time.
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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
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.
There is no evidence, and the applicant has not provided any that his enlistment or separation was erroneous or unjust. The Board notes the applicant was a successful high school and basic training graduate. He has submitted no evidence which would serve as a basis to grant his request based on equity.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 September 1973, the date the applicant was discharged and authenticated his separation document. The time for the applicant to file a request for correction of any error or injustice expired on
5 September 1976.
The application is dated 10 July 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 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
__KAK __ __MHM ___TLP _ CONCUR WITH DETERMINATION
| CASE ID | AR2002076517 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030128 |
| 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. | 110.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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