APPLICANT REQUESTS: That his general discharge for unsuitability be corrected to a medical retirement. He states that he suffered from psychological problems when he was in the Army. Those problems led to his violations of the UCMJ and were severe enough to warrant his medical retirement. Subsequent to his discharge, he has received almost constant treatment and hospitalization for his psychiatric condition.
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 on 15 April 1969 for the
2-year enlistment option in pay grade E-1. He was awarded the military occupational specialty of infantryman, direct fire crewman and was assigned to a unit in Germany.
On 11 February 1970 he accepted punishment under Article 15, UCMJ, for disobeying a lawful command and for absenting himself from his place of duty without authority.
On 15 May 1970 he was convicted by a special court-martial of striking a fellow enlisted soldier in his face with his fist.
On 2 June 1970 the applicant was notified by his commander of his intent to recommend his involuntary discharge due to unsuitability and of his rights in conjunction with that recommendation. The applicant waived his rights.
On 16 June 1970 the applicant was given a psychiatric evaluation in which he was diagnosed as having a sociopathic personality and exhibiting paranoid trends.
On 18 June 1970 he was convicted by a special court-martial for seven specifications of failure to go at the time prescribed to his place of duty and one specification of breaking restriction.
On 23 September 1970 the applicant was issued a General Discharge for unsuitability manifested by frequent and flagrant disregard for authority. He had completed 1 year, 5 months and 9 days of creditable service and had 35 days of lost time.
Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individuals entire record.
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 23 September 1970, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 23 September 1973.
The application is dated 21 March 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
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