APPLICANT REQUESTS: In effect, the applicant requests that his undesirable discharge be upgraded to honorable or general. He states that the doctor at the infirmary instructed him to not wear boots, due to the damage they were causing his feet. His commanding officer ordered him to wear boots. He argued with his commanding officer. He was given an undesirable 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 show:
The applicant entered the Army on 27 February 1961, and was assigned to Fort Benning, Georgia.
The applicant was treated at the Fort Benning dispensary for cramps in his leg and for a stiff neck on five occasions in March and April 1961.
On 14 September 1962 the applicant was arraigned, tried, and found guilty by a special court-martial for being AWOL from 6-7 May 1962 and from 11 May to 7 August 1962.
On 2 April 1963, the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his unit.
On 27 August 1963 the applicant was arraigned, tried, and found guilty by a special court-martial for being AWOL from 7 July to 4 August 1963.
On 7 August 1963 the applicant was treated for swelling to his feet, stating that his feet swell when he wears boots.
On 11 October 1963 the applicant was treated for athletes foot. On 14 and 19 October he was treated for swelling to his feet.
A 15 October 1963 report of psychiatric examination indicates that the applicant stated to the examining psychiatrist that he had gone AWOL on two occasions for the express purpose of gaining a 209 discharge (unsuitability). When informed that his actions were indicative of a 208 discharge (unfitness), he stated he would fight such type of discharge. He stated that he hated Texas, that he would not soldier, but would hang around the unit until his separation date. He was told that his attitude and behavior both constituted a clear cut pattern of shirking. The examining psychiatrist stated that the applicant had no disqualifying mental or physical defects, that he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. There was no psychiatric disorder present. That official stated that the applicant was unfit rather than unsuitable and recommended that he be separated for unfitness.
On 15 October 1963 the applicants commanding officer recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-208, and that he receive an undesirable discharge certificate. The applicant consulted with counsel and stated that he understood that he might receive an Undesirable Discharge Certificate. He declined to make a statement in his own behalf.
On 21 October 1963 the separation authority approved the recommendation and directed that the applicant receive an undesirable discharge.
A 24 October 1963 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination he stated: I am in good health. Except for trouble with my feet & back sometime.
The applicant was discharged at Fort Hood, Texas on
13 November 1963. He had 2 years and 13 days of service and 249 days of lost time.
Army Regulation 635-208, in effect at the time, provided
the authority for discharging enlisted personnel for
unfitness. Separation action was to be taken when the
commander determined that the best interest of the
service would be served by eliminating the individual
concerned and: reasonable attempts to rehabilitate or
develop the individual to be a satisfactory soldier were
unlikely to succeed; or rehabilitation was
impracticable, such as in cases of confirmed drug
addiction or when the medical and/or personal history
indicated that the individual was not amenable to
rehabilitation measures; or disposition under other
regulations was inappropriate. Unfitness included
frequent incidents of a discreditable nature with
military or civil authorities and an established pattern
of shirking. An undesirable discharge was normally considered appropriate.
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. 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
13 November 1963, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 13 November 1966.
The application is dated 15 December 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
ARMY | BCMR | CY1996 | 9606824C070209
He recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-209 for unsuitability. On 22 July 1963 the applicants commanding officer recommended that the applicant be discharged with an undesirable type discharge under the provisions of Army Regulation 635-208 for unfitness. He stated that he was recommending discharge under Army Regulation 635-208 for unfitness instead of Army Regulation 635-209 for unsuitability as recommended by the...
ARMY | BCMR | CY2011 | 20110024290
The applicant provides: * Standard Form 89 (Report of Medical History), dated 14 June 1962 * Standard Form 88 (Report of Medical Examination), dated 14 June 1962 * Standard Form 600 (Chronological Record of Medical Care), dated 10 January 1963 * DA Form 19-24 (Statement), dated 5 December 1963, completed by the applicant's first sergeant * DA Form 19-24, dated 5 December 1963, completed by the applicant's section chief * Six pages of a Report of Board Proceedings by Board of Officers,...
ARMY | BCMR | CY2003 | 2003086832C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. At the time of his enlistment he was determined medically fit to serve; however, the VA states that he had medical problems at the time of his enlistment. Notwithstanding the lack of records concerning the processing of his discharge, there is no evidence, nor has the applicant provided any, to indicate that his discharge under other than honorable conditions was in error...
ARMY | BCMR | CY2004 | 20040010498C070208
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2005 DOCKET NUMBER: AR20040010498 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. It is also noted that...
ARMY | BCMR | CY2012 | 20120011911
His DD Form 214 for this period of service shows he completed 6 months of active service. On 8 July 1963, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) by reason of unfitness. Multiple self-authored letters describing his military service and the challenges he is currently having with the VA. b. VA rating decision, dated 24 March 2010, that shows the applicant is...
ARMY | BCMR | CY2004 | 20040008869C070208
On 18 August 1962, he was assigned to Fort Benning, Georgia for completion of airborne training. He had completed 2 years, 1 month and 16 days of active military service. The available evidence does not indicate the applicant applied to the Army Discharge Review Board under that board's 15-year statute of limitation.
ARMY | BCMR | CY2003 | 2003090479C070212
He states he needs his discharge upgraded so he can "get some of the medical help that [he] should have gotten then." In July 1962 the applicant was again seen by medical personnel for back pain. Therefore, the Board does not excuse the applicant's failure to timely file within the time prescribed by law and this application is denied for that reason.
ARMY | BCMR | CY2005 | 20050003773C070206
On 27 November 1963, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635- 208 for unfitness and directed that the applicant be issued an undesirable discharge. On 29 November 1963, the applicant was discharged with an undesirable discharge and a characterization of service as under other than honorable conditions under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a...
ARMY | BCMR | CY2011 | 20110002397
There is no evidence the applicant sought assistance through his chain of command, Inspector General, Equal Opportunity office, or any other available supporting agency concerning any racial, ethnic, or religious issues. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. _________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the...
ARMY | BCMR | CY2004 | 20040000668C070208
Powers | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The available records fail to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. The evidence of record shows that he was convicted by one summary court-martial and by one special court-martial and that he had NJP imposed against him on seven separate occasions as...