APPLICANT REQUESTS: In effect, that his general discharge be corrected to a medical discharge. He states, in effect, that his bizarre behavior while in the Army should have been sufficient to prove that he was physically unfit due to psychiatric illness and, therefore, given a medical 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 enlisted in the Regular Army for 2 years in pay grade
E-1 on 15 December 1972.
While in his initial training, on 15 March 1973 he was referred to a mental hygiene clinic because he made suicidal remarks and was a potential AWOL risk. He was found to have an inadequate personality but found not to have any disqualifying mental or physical defects sufficient to warrant disposition through medical channels.
He was then notified by his commander of his intent to discharge him for unsuitability, and waived his rights in conjunction with that recommendation.
Accordingly, on 27 April 1973 he was discharged due to unsuitability under the provisions of Army Regulation
635-200, chapter 13, and issued a General Discharge Certificate. He had 4 months and 13 days of active service.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while on a duty status.
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 27 April 1973, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 27 April 1976.
The application is dated 27 December 1994 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
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