APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable. He states that he did not appear before a board and was not afforded a lawyer.
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 25 November 1958, completed basic training at Fort Carson, Colorado and in December 1958 was assigned to an infantry unit at Fort Hood, Texas. On 27 January 1959 the applicant was arraigned and tried by a summary court-martial, and pled guilty to AWOL from 11 January to 13 January 1959. In May he was assigned to an infantry unit at Fort Carson, and in September 1960 to an infantry company in Korea. He returned to the United States at Fort Sam Houston, Texas in September 1961. On
29 September of that year he reenlisted for six years.
On 9 October 1962 the applicantÂ’s commanding officer recommended that the applicant receive disciplinary action for failure to report for duty and absence from the company area. That official noted that the applicant had committed previous offenses, to include apprehension for drunkenness in San Antonio, apprehension for driving while intoxicated by civil authorities, uniform violation, conviction by civil authorities for the DWI incident, pass violation, and failure to pay a taxi fare. On 15 October 1962 the applicant received nonjudicial punishment under Article 15, UCMJ.
On 5 February 1963 the applicantÂ’s commanding officer recommended that the applicant be separated from the Army with an undesirable discharge without board action under the provisions of Army Regulation 635-206. That official stated that the applicant pled guilty and was convicted on
17 January by a civil court for larceny, sentenced to one year in jail, and was presently incarcerated.
On 28 January the applicant stated that he had been advised of his rights, that he had been advised that he had been recommended for separation from the Army without board action, and that such separation would probably result in an undesirable discharge. He stated that he did not desire to make a statement in his own behalf, nor intend to appeal his conviction by civil authorities for larceny of government property.
On 25 February 1963 the separation authority approved the recommendation, waived the requirement for a board of officers, and directed that the applicant receive an Undesirable Discharge Certificate. He was discharged on
6 March 1963. The applicant had 4 years, 2 months, and
23 days of service, and 70 days of lost time.
Army Regulation 635-206, then in effect, provided, in
pertinent part, that an enlisted member who was
convicted by a civilian court of an offense for which
the authorized punishment under the UCMJ included
confinement of 1 year or more was to be considered for
elimination. The requirement for a board of officers
could be waived by the separation authority provided the
individual concerned was physically in civil custody at
the time. When such separation was warranted an
undesirable discharge was considered appropriate.
The maximum authorized punished for larceny under the UCMJ is a bad conduct discharge, confinement for one year, and forfeiture of all pay and allowances.
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
6 March 1963, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 6 March 1966.
The application is dated 12 February 1996 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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