APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded. 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 was born on 3 July 1948. He completed 12 years of formal education. On 16 June 1976, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 21 (Category IV). He completed the required training and was awarded military occupational specialty 13B10 (Cannon Crewman). The highest grade he achieved was pay grade E-3. On 17 May 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order. His imposed punishment was a reduction to pay grade E-2 (suspended for 1 month), a forfeiture of $50 pay and 14 days restriction. On 8 September 1977, the applicant was convicted by a special court-martial of aggravated assault. He was sentenced to confinement at hard labor for 5 months, a forfeiture of $200 pay per month for 5 months and a reduction to pay grade E-1. While in military confinement, disciplinary proceedings were imposed against the applicant on two different occasions for breaking restriction, for the wrongful possession of marijuana, for assault and for communicating a threat. However, particulars are missing from his files. On 16 November 1977, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness,(frequent incidents of a discreditable nature with civil and military authorities). The commander’s recommendation was based on the applicant’s misconduct and action which indicated that he could not be rehabilitated for productive military service. On 18 November 1977, the applicant acknowledged notification, consulted with legal counsel and requested a hearing before a board of officers. The applicant’s request was approved by the commander. On 24 November 1977, a report of physical and mental status evaluation indicated that the applicant had no physical or mental defects sufficient to warrant separation through medical channels. That report also indicated that the applicant was mentally responsible, able to distinguish right from wrong, and adhere to the right. On 12 December 1977, the board of officers convened, and the applicant was represented by appointed counsel. The board found the applicant undesirable for further military service and recommended that he be discharged from service for unfitness with a discharge UOTHC. On 20 December 1977, the appropriate authority approved the findings and recommendation and directed the issuance of a discharge UOTHC. On 25 January 1978, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 13, for unfitness with a discharge UOTHC. He had completed 1 year, 2 months and 21 days of creditable active service and 139 days of lost time. Army Regulation 635-200, chapter 13, then in effect, set forth the basic authority for separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier. 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, US 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 25 January 1978, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 January 1981. The application is dated 4 December 1993, 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