APPLICANT REQUESTS: That his records be corrected to show that he was honorably discharged on 19 October 1963. He indicates that he has been a good citizen and that a grave injustice was done to him.
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:
During the period 21 May 1946-6 November 1947, 27 September 1950-4 April 1951, and 5 April 1951-18 April 1957, the applicant served on active duty (8 years and 7 days and 13 days of lost time).
On 19 April 1957, he reenlisted in the Regular Army, in pay grade E-5.
On 4 May 1963, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave for the period 1-2 May 1963. His punishment was a forfeiture and official reprimand.
On 14 October 1963, he accepted NJP under Article 15, UCMJ, for defrauding the Government by falsely and fraudulently claiming travel and dislocation allowances for his wife and 3 children; for obtaining a travel voucher and neglecting to declare use of the same; and, for falsely claiming travel by privately owned vehicle on 5 September 1963. His punishment was a reduction to pay grade E-4, a forfeiture and an official reprimand.
On 18 October 1963, a bar to reenlistment was approved based on his prior NJPs and his excessive indebtedness.
On 19 October 1963, he was discharged, under honorable conditions (general discharge), based on the expiration of his term of service. His records show that he had 14 years, 6 months and 7 days of creditable service and 14 days of lost time. .
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when 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 19 October 1963, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 19 October 1966.
The application is dated 3 July 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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