APPLICANT REQUESTS: That his general discharge be corrected to an honorable medical disability retirement. He states that he was discharged while he was a patient at an Army hospital and had known disabilities at that time.
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 23 December 1963 and was awarded the military occupational specialty of light weapons infantryman.
Between 18 April and 17 December 1964 he accepted nonjudicial punishment under Article 15, UCMJ, on four occasions, once for going from his appointed place of duty, once for absenting himself from his unit, and twice for missing bed check.
On 22 January 1965 the applicant was convicted by a special court-martial of AWOL from 18 to 30 December 1964. He was sentenced to a forfeiture of $55.00 a month for 6 months, confinement at hard labor for 6 months, and a reduction from pay grade E-2 to E-1.
On 16 February 1965 the applicant was the subject of a psychiatric examination. He was diagnosed as having an inadequate personality, chronic, mild, manifested by inadequate response to intellectual, emotional and social demands. He also demonstrated poor adaptability and social incompatibility. The examining psychiatrist recommended that the applicant be discharged for unsuitability or unfitness.
On 24 February 1965 the applicant was given a separation physical examination. During that examination the applicant reported that he had received just a minor operation on his right leg at a military hospital.
On 26 February 1965 the applicants commander recommended that he be separated due to unsuitability. That recommendation was approved and the applicant was issued a General Discharge Certificate for unsuitability on 15 March 1965 under the provisions of Army Regulation 635-209. He had a total of 1 year and 17 days of qualifying service and 66 days of lost time.
Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commanders opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individuals psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.
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 15 March 1965, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 15 March 1968.
The application is dated 16 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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