APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD), issued as the result of a general court-martial conviction, be upgraded to honorable. He states that he was young and entered into a bad marriage which caused him to have problems while in the Army. He is now a solid citizen, with a good family, a steady job, and a renewed belief in God. His counsel adds that the applicant accepts full responsibility for his past acts and points out that his only offenses were two periods of absence without leave (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 applicant's military records show:
He was born on 4 June 1947 and enlisted in the Regular Army for 3 years on 21 February 1968. Following basic combat training (BCT) at Fort Benning, Georgia, he was sent to Fort Rucker, Alabama, for advanced individual training (AIT) as a firefighter. While in AIT, he went AWOL from 1-9 June 1968. After returning to military control, he was reassigned to Fort Jackson, South Carolina for AIT as a mechanic [he did not complete AIT at Fort Rucker]. At Fort Jackson, he went AWOL again; this time from 21 July 1968 to 16 October 1968. When he was again returned to military control, he was transferred to Fort Campbell, Kentucky, and placed in pre-trial confinement awaiting trial by special court-martial. Convicted on 2 November 1968, he received a 6 month sentence to confinement (suspended for 6 months) and forfeiture of $73 per month for 6 months.
Following his court-martial conviction, the applicant was sent to Fort Gordon, Georgia, for infantry AIT [he did not complete AIT at Fort Jackson]. During Christmas 1968, he returned home on leave to marry his girlfriend whom he believed to be pregnant. Unbeknownst to him, his girlfriend had obtained an abortion and was not pregnant when they married on 19 December 1968. This later caused the applicant emotional stress and marital problems.
Having completed infantry AIT, the applicant received orders to Vietnam and was given leave enroute to the embarkation point. He went AWOL on 5 April 1969 and remained absent this time until 30 January 1971 when he turned himself in at Fort McPherson, Georgia. His original suspended sentence was vacated and he was transferred to Fort Benning and placed in confinement. He was tried by a general court-martial on 17 March 1971, convicted, and sentenced to confinement at hard labor for 10 months, forfeiture of $95 per month for 10 months, and a BCD. He was transferred to the United States Disciplinary Barracks where he served his sentence. His discharge was executed on 4 October 1971. He had 10 months and 10 days of creditable service and 1010 days of lost time due to AWOL and confinement.
The applicant was a poor soldier and an habitual AWOL. Trial by court-martial was completely warranted and his conviction and discharge were effected in accordance with applicable law and regulations. The BCD appropriately characterizes the misconduct for which the applicant was convicted.
During the processing of this case, a criminal background check was conducted by the Federal Bureau of Investigation (FBI). The report shows that, in addition to his court-martial conviction, he was convicted of aiding and abetting in possessing/uttering a stolen US Treasury check in January 1975 and sentenced to a year and a day in jail; he was convicted of possession of a stolen US Treasury check in June 1976 and sentenced to a year and a day in jail; and he was convicted of strong arm robbery in March 1982 and sentenced to 6 months in jail. A copy of the FBI report is available to the applicant upon his request to this Board.
The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.
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 4 October 1971, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 4 October 1974.
The application is dated 29 May 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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