APPLICANT REQUESTS: That the general discharge he received for unsuitability be corrected to a medical discharge. He states that his lack of emotional development, his unreliability and his lack of dependability, all of which were noted while he was in the Army, required that he receive a medical discharge. He also states that he was beaten by a noncommissioned officer in his unit on two occasions, and alludes that those beatings had a bearing on his medical fitness.
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 15 March 1968 and was awarded the military occupational specialty of a cook.
The applicant was formally counseled on five occasions between 18 April 1969 and 11 February 1970 for conduct, dereliction of duties, personal hygiene, abuse of drugs, and absence from his place of duty.
He was administered nonjudicial punishment under Article 15, UCMJ, on three occasions between 18 April 1969 and 11 February 1970 for absenting himself without authority from his appointed place of duty, for dereliction of duty, and for destruction of Government property.
On 10 January 1969 he was convicted by a special
court-martial of being AWOL from 12 November to 19 December 1968.
On 24 July 1970 the applicant was given a psychiatric evaluation. In that evaluation it was stated that the applicant had been seen by the hospital on three occasions for nervousness, inefficiency, dependency, and inadequacy. The psychiatrist found the applicant to be markedly passively dependent, to have poor impulse control, to have poor tolerance, to be immature, and to respond to minimal stress situations with anxiety attacks and possible drug use. The applicant was found medically qualified for separation.
On 1 August 1970 the applicants commander notified him of his intent to recommend his discharge for unsuitability, character and behavior disorder, and of his rights in conjunction with that recommendation. The applicant waived all of his rights.
On 12 August 1970 the applicants commander forwarded a recommendation that the applicant be discharged for unsuitability, character and behavior disorder, under the provisions of Army Regulation 635-212.
That recommendation was approved and the applicant was issued a General Discharge Certificate on 17 September 1970. He had 2 years, 4 months and 6 days of creditable service and 58 days of lost time (AWOL and confinement).
Army Regulation 635-212, then in effect, set forth the
policy and procedures for the administrative separation
of enlisted personnel for unfitness and unsuitability.
It provided, in pertinent part, for the discharge due to
unsuitability of those individuals with character and
behavior disorders and disorders of intelligence as
determined by medical authority. When separation for
unsuitability was warranted an honorable or general
discharge was issued as determined by the separation
authority based upon the individual's entire record.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
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 17 September 1970, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 17 September 1973.
The application is dated 9 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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