APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD), under conditions other than honorable be upgraded to honorable.  He states he has been suffering from mental health problems since his discharge and that he served his country well.

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 in the Regular Army on 31 July 1969 for a period of 3 years with a morals waiver.

During his service he was counseled and received nonjudicial punishment on numerous events for misconduct.

He was arrested and incarcerated for auto theft and he was dropped from the rolls as a deserter. 

The applicant’s commander initiated action to separate the applicant from the service under the provisions of AR 635-206, for civil conviction.

The appropriate authority approved the recommendation. 

Accordingly, on 14 September 1972 the applicant was discharged in pay grade E-1, under the provisions of AR 635-206, for civil conviction.

The applicant did petition the Discharge Review Board (ADRB) for a discharge upgrade within 15 years of his separation, but was denied in 1977.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which
the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was considered appropriate.

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 in 1977, the date the applicant was denied his discharge upgrade by the ADRB.  The time for the applicant to file a request for correction of any error or injustice expired in 1980.

The application is dated 11 September 1997 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 prescribe by law.

BOARD VOTE:

____   ____   ____  EXCUSE FAILURE TO TIMELY FILE

____   ____   ____  GRANT FORMAL HEARING

____   ____   ____  CONCUR WITH DETERMINATION

                                                   Loren G. Harrell
                                                   Director