| Mr. Carl W. S. Chun | Director | |
| Ms. Gale J. Thomas | Analyst |
| Mr. Walter T. Morrison | Chairperson | |
| Mr. Christopher J. Prosser | Member | |
| Ms. Yalonda Maldonado | Member |
APPLICANT REQUESTS: That his general discharge be upgraded to honorable. He states that he was not given a choice of a hearing or a court-martial.
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 20 January 1973, he enlisted in the Regular Army for a period of 3 years.
Between October 1973 and April 1974, he received numerous nonjudicial punishments under the provisions of Article 15, Uniformed Code of Military Justice for being absent without leave (AWOL), disobeying a lawful order, and for failing to go to his appointed place of duty on several occasions. His punishments included reduction, forfeitures, restriction and extra duty.
On 15 January 1975, his commanding officer notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-37, the Army’s Expeditious Discharge Program, with a general discharge. The commander’s proposed action was based on the applicant’s blatant disregard for orders and regulations which had resulted in numerous nonjudicial punishments and counselings, as well as his apathy and inability to adapt to military life.
On 16 January 1975, having been advised of his rights, the applicant acknowledged notification of the contemplated action to discharge him from the Army. He voluntarily consented to the discharge, and waived his rights to counsel.
On 20 January 1975, the appropriate separation authority approved the applicant’s discharge under the provisions of the above cited regulation and directed the issuance of a general discharge certificate.
On 22 January 1975, the applicant was discharged in the pay grade of E-3, under the provisions of Army Regulation 635-200, paragraph 5-37. His DD Form 214 (Report of Separation from Active Duty) indicates he had 1 year, 4 months and 13 days of active military service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, for the convenience of the Government. Paragraph 5-37 provided the policies and procedures for separating enlisted personnel under the Army’s Expeditious Discharge Program.
The applicant was advised of his rights and voluntarily consented to the discharge. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
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 22 January 1975, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 22 January 1978.
The application is dated 8 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
__WTM _ __CJP__ ___YM __ CONCUR WITH DETERMINATION
| CASE ID | AR2002077347 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030130 |
| 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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