APPLICANT REQUESTS: In effect, the spouse of a former service member requests that the former service members bad conduct discharge be changed to a general under honorable conditions.
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 former service members Army enlistment from May 1960 to May 1963 included service in Hawaii and Thailand as a medical specialist. He was separated with an honorable discharge at the expiration of his term of service.
After being out of the Army for 3 years the former service member enlisted on 9 November 1966. On 5 April 1968 a special court-martial found the former service member guilty of AWOL. On 22 April 1969 a general court-martial found him guilty of AWOL from 15 April 1968 to 5 February 1969. Subsequently, he was discharged on 4 August 1969 with 4 years and 17 days active duty service and 605 days lost time.
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 4 August 1969, the date of discharge. The time for the former service member or his/her representative to file a request for correction of any error or injustice expired on 4 August 1972.
The application is dated 12 February 1996 and the spouse of the former service member 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 spouse of the former service member 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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