APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general 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:
He was born on 11 August 1948. He completed 9 years of formal education. On 21 April 1966, he enlisted in the Regular Army for 3 years. His Armed Forces Qualifications Test score was 32 (Category III). He completed the required training and was awarded military occupational specialty 71N10 (Transportation and Movement Specialist). The highest grade he achieved was pay grade E-3.
Between 12 June 1967 and 7 February 1968, the applicant accepted three nonjudicial punishment (NJPs), under Article 15, Uniform Code of Military Justice (UCMJ), for two occasions of being absent without leave (AWOL) from 24 to
26 November 1967 and from 7 January to 3 February 1968 and for the misappropriation of a 1/4 Ton Utility Truck property of the US Army. His punishments included forfeitures, restrictions, extra duties and a reduction to pay grade E-2.
On 8 April 1968, the applicant was convicted by a special court-martial of being AWOL from 19 to 25 March 1968. He was sentenced to a reduction to pay grade E-1 and confinement at hard labor for 30 days.
On 26 April 1968, the applicant accepted an NJP, under Article 15, UCMJ, for being AWOL from 22 to 24 April 1968. His imposed punishment was a forfeiture of $31 pay.
On 29 August 1968, the applicant was evaluated by a psychiatrist. The applicant had no physical or mental defects sufficient to warrant separation through medical channels and that the applicant was mentally responsible, able to distinguish right from wrong, and adhere to the right. The psychiatrist recommended that the applicant be discharged from service for unfitness.
On 10 September 1968, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness with a discharge UOTHC. The commanders recommendation was based on the applicants repeated commission of petty offenses, his inability to adapt to military life and his actions that indicated that he could not be rehabilitated for productive military service. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant waived personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so.
On 16 September 1968, the appropriate authority approved the recommendation and directed the issuance of a discharge UOTHC. On 18 September 1968, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-212, for unfitness with a discharge UOTHC. He had completed 2 years, 4 months and 27 days of creditable active service.
Army Regulation 635-212, then in effect, set forth the basic authority for separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that commanders would separate a member when, in the commanders judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier. When separation for unfitness a discharge UOTHC 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 18 September 1968, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 18 September 1971.
The application is dated 2 December 1994, 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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