APPLICANT REQUESTS: In effect, discharge upgrade. The applicant contends that he should have an honorable discharge as he never received a general or special court-marital or spent time in confinement,
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 enlisted in the Regular Army on 13 May 1954 for 3 years. He was discharged on 18 November 1954 for the purpose of immediate reenlistment. On 19 November 1954 he reenlisted for 3 years.
His disciplinary record reflects that he received 3 summary and 1 special court-martials.
On 27 September 1957, a psychiatric examination found no signs of significant psychiatric illness and was psychiatrically cleared for administrative action as
deemed necessary.
On 9 October 1957 the applicant was recommended for elimination from the service under the provisions of Army Regulation 635-208. In his statement, the commanding officer noted that the applicant had 4 court-martials and since being assigned to his unit has made no attempt to become a satisfactory soldier. On 16 October 1957 the applicant was advised of the separation action being taken against him.
The applicants record indicates that a board of officers was convened on 16 October 1957. The boards proceedings are not part of the applicants record, however, discharge with a undesirable discharge was apparently recommended and was subsequently approved. The applicant was discharged on 8 November 1957 under other than honorable conditions.
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 8 November 1957, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 8 November 1960.
The application is dated 27 September 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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