APPLICANT REQUESTS: In effect, that her honorable discharge (HD) be changed to 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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed personnel records.
She was born on 31 October 1942. She completed 12 years of formal education. On 27 February 1961, she enlisted in the Regular Army for 3 years. She completed the required training and was awarded military occupational specialty 911.10 (Medical Specialist). The highest grade she achieved was pay grade E-4.
On 26 March 1963, while assigned to a unit in Germany, the applicant was convicted by a summary court-martial for giving a German National her military identification card, her soviet military mission card, her code of conduct card, her shot record and her ABC warfare card. She was sentenced to a reduction to pay grade E-3.
On 10 June 1963, the applicant was notified that her commander was recommending a discharge under the provisions of Army Regulation 635-209, by reason of unsuitability (apathy, defective attitudes and inability to expend effort constructively) with a HD. The commanders recommendation was based on the applicants inability to handle her personal affairs, her unsatisfactory conduct and efficiency ratings, her total lack of motivation, her poor judgment in her selection of friends, her immature behavior and attitude, her poor personal hygiene, her inability to adapt to military life and her actions which indicated that she could not be rehabilitated for productive military service. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to her. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. She was afforded the opportunity to submit statements in her own behalf, but declined to do so.
A report of physical status and mental status evaluation indicates that the applicant had no physical or mental defects sufficient to warrant separation through medical channels. That report also indicated that the applicant was mentally responsible, could distinguish right from wrong, and adhere to the right.
On 29 July 1963, the appropriate authority approved the recommendation and directed the issuance of a HD. On
29 August 1963, the applicant was discharged in pay grade
E-3 under the provisions of Army Regulations 635-209, for unsuitability (apathy, defective attitudes and inability to expend effort constructively) with an HD. She had completed 2 years, 6 months and 3 days of creditable active service.
Army Regulation 635-209, in effect at the time, set forth the polices and procedures for separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that the commander would separate a member for unsuitability when, in the commanders judgment, it was clearly established that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Individuals with character and behavior disorders were considered unsuitable for further military service. When separation for unsuitability was considered appropriate a General or a Honorable Discharge Certificate was issued based upon the character of the service as determined by the separation authority.
There is no medical evidence in the applicants file in support of her request.
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
29 August 1963, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 August 1966.
The application is dated 15 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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