APPLICANT REQUESTS: That his dishonorable discharge (DD) be upgraded to general under honorable conditions. He states, in effect, that he was a young newly married soldier (married approximately 6 months); that he left without official leave because of marital problems between his wife and him; that, because of the limited number of black service personnel, he was unable to ask permission for emergency leave; that segregation prevented black chaplains from visiting his unit in Maine; and that he voluntarily turned himself in after resolving the marital problem.
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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.
The applicant was born on 2 August 1933. He completed over 9 years of formal education. He quit school and went to work to help his mother financially. On 20 October 1953, he was inducted into the Army of the United States. He completed basic training. He was assigned to Fort Bliss, Texas, and then to a unit in Maine.
On 10 November 1955, after pleading guilty, he was convicted by a special court-martial for being absent without leave (AWOL) from 13 August 1955 to 29 September 1955. He was sentenced to confinement at hard labor for 4 months. However, only so much of the sentence as provided for the performance of hard labor without confinement for 3 months, and confinement at hard labor for 1 month was approved, but the execution of that portion pertaining to confinement was suspended effective 21 November 1955 until 10 March 1956, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.
On 24 October 1956, after pleading guilty only to the charges of AWOL, the applicant was convicted by a general court-martial for being AWOL from 17 January 1956 to 30 March 1956, for being AWOL from 10 April 1956 to 16 April 1956, and for being AWOL from 24 April 1956, with intent to remain away therefrom permanently, and remaining so absent in desertion 1956 until his apprehension on 6 September 1956. The applicant was represented by counsel, and testified in his own behalf. He was advised of his rights, etc., throughout the trial.
The applicant testified, in effect, that he was married; that he had two children, ages 4 and 2, which lived with his mother; that he had one of those children and another one by his wife that were living with he and his wife; that he was in civilian confinement from 22 April 1956 through 27 April 1956 for failure to pay a fine adjudged in 1950; that he returned voluntarily after the first two absences; that he was granted a three day pass since his wife was having surgery (miscarriage) even though he was under charges; and that, after being released from civilian confinement, he decided that he would get a job and try to give his wife some money so that she would have some to take care of her and the kids since she was in no condition to work while he was away.
The applicant was sentenced to a DD, forfeiture of all pay and allowances, and confinement at hard labor for 1 year. On 1 November 1956, the sentence was approved, but the execution of that portion adjudging a DD was suspended until his release from confinement or until completion of the appellate review, whichever was the later date.
On 29 November 1956, a board of review affirmed the findings of guilty and sentence as approved by the proper authority. Orders, dated 21 December 1956, indicate that the sentence would be duly executed, but the execution of that portion adjudging a DD was suspended until the applicants release from confinement. On 25 July 1957, the applicant was discharged, with a DD.
The applicant has not submitted any documentation to support his allegations. The Record of Trial indicates that the applicants rights were protected, and that the procedural matters were finally and conclusively adjudicated in the court-martial appellate process.
On 7 November 1995, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. It was not considered by that board since he was separated more than 15 years from the date of his application. Furthermore, that board could not consider his request since he was separated by reason of a general court-martial.
The statutory authority under which this Board was created (title 10, U.S. Code, section 1552, as amended) precludes any action by the Board which would disturb the finality of a court-martial conviction.
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 25 July 1957, the date that the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 July 1960.
The application is dated 4 March 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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