APPLICANT REQUESTS: That his records be corrected to show that he was medically retired. He states that he reenlisted to get away from his unit because he was referred to as the company fat man. However, nothing changed in his new unit, and he proceeded to go AWOL, leading to his undesirable discharge. He contends that he has now been told that he should not have been allowed to reenlist because of his high blood pressure.
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 enlisted in the Regular Army on 23 October 1961 weighing 211 pounds, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4. During that enlistment he was processed for fraudulent enlistment for concealing civilian arrests for unlawfully driving away automobile, for statutory rape, for tampering with a vehicle, and for hit and run. His command waived his fraudulent entry and retained him on active duty.
A DA Form 428, Application for Identification Card, dated 22 June 1963, shows the applicants weight as 247 pounds.
He reenlisted for 6 years on 25 October 1963.
A second DA Form 428 dated 20 April 1964 shows the applicants weight as 265 pounds.
On 18 February 1964 the applicant was convicted by a special court-martial of being AWOL from 3 to 17 December 1963 and of being AWOL from 22 December 1963 to 25 January 1964.
On 7 October 1964 the applicant was again convicted by a special court-martial of being AWOL from 12 to 13 August 1964 and of being AWOL from 18 August to 2 September 1964.
The applicants records do not contain the applicants administrative discharge proceedings.
On 29 December 1964 the applicant was discharged under conditions other than honorable under the provisions of Army Regulation 635-208 and issued an Undesirable Discharge Certificate.
The applicants medical records were not provided to the Board. His personnel records do not show any indication of his having high blood pressure or any other medical problem.
Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness. Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts. Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
Army Regulation 635-40, paragraph 4-3a, states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.
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 December 1964, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 December 1967.
The application is dated 17 October 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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