| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Thomas Lanyi | Member | |
| Mr. Harry B. Oberg | Member |
APPLICANT REQUESTS: That his undesirable discharge be upgraded. He makes no statement and 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 on 10 February 1973, at the age of 17, with 10 years of formal education. He successfully completed basic and advanced individual training and received excellent conduct and efficiency ratings.
In June 1971 he was assigned to Fort Knox, Kentucky as a clerk typist. In September 1971 he was punished under Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty. He was punished again in October 1971 for disobeying a lawful order.
In November 1971 he assumed clerical duties at a Personnel Services Company in Europe. In spite of his two records of non-judicial punishment in September and October 1971, the applicant was advanced to pay grade E-3 in December 1971.
In March 1972 he was punished under Article 15 of the Uniform Code of Military Justice for being absent from his place of duty.
His records indicate that on 3 May 1972 he was reported as being absent without leave and on 1 June 1972 he was dropped from the rolls of the Army. The applicant returned to military control at Fort Riley, Kansas in September 1972.
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. He did not submit any statements on his own behalf.
The medical history, which he submitted for his medical examination for separation, indicated he was in excellent health. The evaluating physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.
A mental health evaluation, also conducted as part of his separation action, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal. It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.
On 2 October 1972 the separation authority, a major general, approved the applicant's request and directed that an undesirable discharge be issued. On
11 October 1972, the applicant was separated, in absentia, under the provisions of Army Regulation 635-200, chapter 10. His records indicate that he again departed absent without leave on 5 October 1972 and was absent without leave on the date of his separation. At the time of his separation he had approximately 15 months of creditable service and more than 130 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 discharge was in error or unjust. In the absence of such evidence, there is no basis for the Board to grant the relief requested.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 October 1972, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 11 October 1975.
The application is dated 5 March 2003 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
__AAO__ __TL____ __HBO__ CONCUR WITH DETERMINATION
| CASE ID | AR2003088108 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030828 |
| 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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