APPLICANT REQUESTS:  In effect, that his dishonorable discharge be upgraded to an honorable 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:

He was inducted on 22 September 1950 and served 1 year, 1 month and 1 day in Korea.  He was honorably discharged on 23 June 1952 in the grade of private first class.  He reenlisted on 12 December 1952 and was dishonorably discharged on 13 August 1954 pursuant to the sentence of a general court-martial.

During his service, he was convicted twice by summary court-martial (AWOL and failure to repair) and once by a special court-martial (AWOL for less than 1 day, wearing an improper uniform, assault and breach of arrest).

On 12 February 1954 before a general court-martial, he plead not guilty to assault on a superior NCO.  He was found guilty and sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to be confined at hard labor for 1 year.  On 5 April 1954 the Board of Review affirmed the findings and sentence of his court-martial.  The Court of Military Appeals denied his petition for a grant of relief.

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 August 1954, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 August 1957.

The application is dated 29 May 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