APPLICANT REQUESTS:  In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.  He states that he had had problems at home when he was young and was unable to adjust to military life.  He is now in need of medical help and cannot afford to go to a doctor.

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 2 June 1949.  He was inducted into the Army on 10 April 1969.  
He completed basic combat training but not advanced individual training.

On 9 June 1969, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.

On 10 July 1969, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 3 - 8 July 1969.

On 12 January 1970, the applicant was convicted by a special court-martial of being AWOL from 18 August - 18 November 1969.  He was sentenced to confinement at hard labor for 6 months and to forfeit $50 pay for 6 months.

On 27 May 1970, the applicant completed a separation physical and was found qualified for separation.

On 2 June 1970, the applicant was convicted by a special court-martial of being AWOL from 15 January - 18 May 1970.  He was sentenced to confinement at hard labor for 4 months and to forfeit $88 pay for 4 months.

On 5 June 1970, the applicant underwent a psychiatric evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, mentally capable of understanding and participating in any board proceedings, and psychiatrically cleared for any administrative or disciplinary action.

On an unknown date, the commander initiated separation proceedings under the provisions of Army Regulation 635-212 for unfitness.  He cited the applicant’s two special court-martials, his dislike for the military, his lack of self-motivation and a negative attitude towards the military.

On 15 July 1970, the applicant acknowledged notification of the separation action.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel and elected not to submit any statements in his own behalf.

On 23 July 1970, the appropriate commander approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

On 28 July 1970, the applicant was discharged, with a discharge UOTHC , in pay grade E-1, under the provisions of Army Regulation 635-212.  He had completed 3 months of creditable active service and had 384 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable, UOTHC discharge was normally considered appropriate.

There is no evidence the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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 28 July 1970, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 28 July 1973.

The application is dated 7 August 1997 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

                                                          Loren G. Harrell
					     Director