APPLICANT REQUESTS:  In effect, that the discharge of her spouse, a former servicemember, be upgraded from undesirable to honorable.  She notes she feels the undesirable discharge “was to harsh a punishment for his AWOL….”

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 former servicemember’s military records show:

He entered active duty in January 1955 and was separated for the purpose of immediate reenlistment in 1957.  On 
5 November 1958, after returning from a tour of duty in Korea, in pay grade E-5, the former servicemember departed AWOL.  He was apprehended by civilian authorities and returned to military control on 22 December 1959.

A January 1960 mental status evaluation concluded the former servicemember showed immaturity with symptomatic habit reaction manifested by AWOL and acute, situation, maladjustment.  The evaluating physician noted his motivation for future service was poor but that he was “mentally responsible both to distinguish right from wrong and adhere to the right if so inclined.”  The physician recommended he be administratively separated from the service if a punitive discharge was not ordered by his upcoming court-martial.

The former servicemember was convicted by a general court-martial and sentenced to reduction to pay grade E-1, forfeiture of pay, and 6 months confinement at hard labor.

In June 1960 he was recommended for administrative separation in accordance with Army Regulation 635-208.  A second mental status evaluation, conducted on 1 July 1960, again concluded the former servicemember was mentally responsible and able to distinguish right from wrong and to adhere to the right.  It noted he married shortly after his return to the United States from Korea in 1957 and when his spouse became pregnant he decided to stay with her and not report to his new duty assignment.  The evaluating physician indicated the applicant “expresses no interest or motivation in further military service” and recommended administrative separation.

The separation authority approved the recommendation and on 6 September 1960 he was separated with an undesirable discharge.  At the time of his separation he had 3 years, 10 months, and 5 days of creditable service and 644 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 former servicemember 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 
6 September 1960, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 6 September 1963.

The application is dated 7 December 1997 and neither the applicant nor the former servicemember have 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