APPLICANT REQUESTS: In effect, the applicant requests that his undesirable discharge be upgraded to honorable or general. He states that the doctor at the infirmary instructed him to not wear boots, due to the damage they were causing his feet. His commanding officer ordered him to wear boots. He argued with his commanding officer. He was given an undesirable discharge. 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 entered the Army on 27 February 1961, and was assigned to Fort Benning, Georgia. The applicant was treated at the Fort Benning dispensary for cramps in his leg and for a stiff neck on five occasions in March and April 1961. On 14 September 1962 the applicant was arraigned, tried, and found guilty by a special court-martial for being AWOL from 6-7 May 1962 and from 11 May to 7 August 1962. On 2 April 1963, the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his unit. On 27 August 1963 the applicant was arraigned, tried, and found guilty by a special court-martial for being AWOL from 7 July to 4 August 1963. On 7 August 1963 the applicant was treated for swelling to his feet, stating that his feet swell when he wears boots. On 11 October 1963 the applicant was treated for athlete’s foot. On 14 and 19 October he was treated for swelling to his feet. A 15 October 1963 report of psychiatric examination indicates that the applicant stated to the examining psychiatrist that he had gone AWOL on two occasions for the express purpose of gaining a 209 discharge (unsuitability). When informed that his actions were indicative of a 208 discharge (unfitness), he stated he would fight such type of discharge. He stated that he hated Texas, that he would not soldier, but would hang around the unit until his separation date. He was told that his attitude and behavior both constituted a clear cut pattern of shirking. The examining psychiatrist stated that the applicant had no disqualifying mental or physical defects, that he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. There was no psychiatric disorder present. That official stated that the applicant was unfit rather than unsuitable and recommended that he be separated for unfitness. On 15 October 1963 the applicant’s commanding officer recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-208, and that he receive an undesirable discharge certificate. The applicant consulted with counsel and stated that he understood that he might receive an Undesirable Discharge Certificate. He declined to make a statement in his own behalf. On 21 October 1963 the separation authority approved the recommendation and directed that the applicant receive an undesirable discharge. A 24 October 1963 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination he stated: “I am in good health. Except for trouble with my feet & back sometime”. The applicant was discharged at Fort Hood, Texas on 13 November 1963. He had 2 years and 13 days of service and 249 days of lost time. Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate. Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. An undesirable discharge was normally considered appropriate. 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 13 November 1963, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 13 November 1966. The application is dated 15 December 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