| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. James E. Anderholm | Member | |
| Ms. Charmane Collins | Member |
APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to honorable.
He states that he requested a discharge for the good of the service because of problems within his family. He tried to reenlist on two occasions but was barred from doing so. He was pro-Army all the way right up to his discharge. He was a good soldier, and wanted to be a career soldier; however, his family needed him.
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 in the Army for three years on 16 June 1976, completed training, and in February 1977 was on orders for assignment to Korea with a reporting date of 10 March 1977.
The applicant was AWOL from 11 March 1977 to 14 February 1978, when he returned to military control.
On 8 March 1978 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He stated that he understood that he could request discharge because the charge of AWOL for more than 30 days had been preferred against him under the Uniform Code of Military Justice, which authorizes the imposition of a bad conduct or dishonorable discharge. He acknowledged that he was guilty of the charge against him, and that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. He stated that he understood the nature and consequences of the under than honorable conditions discharge that he might receive. He submitted a statement to the effect that he could not adjust to military standards because of his family problems. He stated that he deserved a general discharge despite his AWOL because he tried hard to be a good soldier.
On 15 March 1978 the separation authority approved the applicant’s request and directed that he be discharged under other than honorable conditions. He was discharged on 16 June 1976 at Fort Bragg, North Carolina.
On 8 May 1981 the Army Discharge Review Board unanimously denied the applicant’s request to upgrade his 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. 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.
There is no evidence, nor has the applicant provided any, to indicate that his discharge was in error or unjust and as such there is no basis correct his record to upgrade his discharge.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 May 1981, the date the Army Discharge Review Board denied his request to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired on
8 May 1984.
The application is dated 13 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__ __JEA___ __CC ___ CONCUR WITH DETERMINATION
| CASE ID | AR2002076774 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20021203 |
| 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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