APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions. He states in effect, that the recruiters deceived him by verbally promising him Officers Candidate School. 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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed personnel records. He was born on 3 December 1945. He completed 10 years of formal education. On 19 December 1963, he enlisted into the Regular Army for 3 years. His Armed Forces Qualification Test score was 62 (Category III). On 27 February 1964, the applicant was convicted by a special court-martial of stealing from the military exchange store. He was sentenced to confinement at hard labor for 3 months and a forfeiture of $40 pay per month for 3 months. On 2 April 1964, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 22 to 23 March 1964. His imposed punishment was a forfeiture of $15 pay and 14 days extra duty. On 16 April 1964, the applicant was reported for being AWOL. On 21 April 1964, the applicant was arrested by civil authorities for breaking and entering. On 18 July 1964, the applicant was tried and convicted by civil authorities for breaking and entering. He was sentenced to confinement at hard labor for 5 years. On 15 September 1964, the applicant was notified that the commander was recommending him for a discharge under the provisions of Army Regulation 635-206, due to a conviction by a civil court. The applicant was advised by legal counsel of the basis for the contemplated separation and the rights available to him. He was also advised of the effects of a discharge UOTHC. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so. On 25 September 1964, the convening authority approved the recommendation and directed the issuance of a discharge UOTHC. On 5 October 1964, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206, due to a conviction by a civil court with a discharge UOTHC. He had completed 3 months and 21 days of creditable active service and had 179 days of lost time. Army Regulation 635-206, then in effect, stated that soldiers convicted of a civilian offense, which offense under the UCMJ could result in punitive discharge, would be considered for an administrative discharge under the provisions of that Army Regulation. There is no evidence in the applicant’s record in support of his allegation. 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. DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 October 1964, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 5 October 1967. The application is dated 15 July 1995, 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. BOARD VOTE: EXCUSE FAILURE TO TIMELY FILE GRANT FORMAL HEARING CONCUR WITH DETERMINATION Karl F. Schneider Acting Director