| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Ms. Shirley L. Powell | Member | |
| Mr. Elzey J. Arledge, Jr. | Member |
APPLICANT REQUESTS: That his "under conditions other than honorable" discharge be upgraded. He states that following his return from Vietnam he was not accustomed to the "structured ways of military life," and was having "flashbacks, nightmares, panic attacks, [and] all sorts of things that make a normal life next to impossible." He states that the only thing he wanted to do, when he returned to the United States, was see his girlfriend, and when his request for leave was denied he "left without permission." He notes that he continues to struggle with the memories and flashbacks and maintains his discharge should be upgraded because he "was not entirely responsible" for his actions at the time he "disobeyed orders." He submits no evidence in support of his request beyond his self-authored statement.
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:
The applicant enlisted and entered active duty on 28 May 1968. He was nearly 18 years old at the time of his enlistment and had 10 years of formal education.
In spite of initially receiving unsatisfactory conduct and efficiency rating while undergoing training as a wheel vehicle repairman, the applicant ultimately received excellent conduct and efficiency ratings upon completion of that training.
In December 1968 the applicant was assigned to a maintenance battalion in Germany. In June 1969 he was punished under Article 15 of the Uniform Code of Military Justice for destroying government property and for being drunk and disorderly in the unit area. In December 1969 he was transferred to Vietnam and within days of his arrival, he was promoted to pay grade E-4.
In January 1970 the applicant was punished under Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty and in August 1970 he was punished for being drunk on duty. As a result of the August 1970 action, the applicant was reduced to pay grade E-1.
In December 1970 the applicant returned to the United States and was assigned to Fort Bragg, North Carolina. He was punished in February 1971 under Article 15 of the Uniform Code of Military Justice for one day of being absent without leave.
In March 1971 orders were issued reassigning the applicant to the overseas replacement detachment at Fort Dix, New Jersey for transportation to Vietnam. The applicant did not report to Fort Dix as scheduled and on 21 April 1971 was reported as absent without leave and his name was subsequently dropped from the roles of the Army. The applicant returned to military control in August 1971 and was convicted by a special court-martial. His punishment included confinement at hard labor for two months, which was suspended. He was then reassigned to Fort Carson, Colorado. The applicant failed to report to Fort Carson and on 20 September 1971 he was once again reported as absent without leave. The applicant returned to military control on 27 October 1971 and was confined at Fort Knox, Kentucky.
Although documents associated with his administrative separation were not in records available to the Board, his separation document indicates that he was discharged "under conditions other than honorable" on 9 December 1971 for the good of the service. He was issued an Undesirable Discharge Certificate.
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.
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.
There is no evidence, and the applicant has not provided any, that his discharge was improper or that there were mitigating circumstances which would have excused the behavior which resulted in his administrative separation. In the absence of more compelling evidence, there is no basis to upgrade the character of the applicant's 1971 discharge.
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 9 December 1971, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 9 December 1974.
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
__FNE _ __SLP __ __EJA __ CONCUR WITH DETERMINATION
| CASE ID | AR2002076584 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20021022 |
| 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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