APPLICANT REQUESTS: In effect, upgrade his undesirable discharge (UD) to a general discharge 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:
He was born on 28 December 1942. He completed 10 years of formal education. On 22 June 1967, the applicant was inducted into the Army of the United States for 2 years. His Armed Forces Qualifications Test score was 18 (Category IV).
On 23 April 1968, the applicant was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) from 3 February to 28 March 1968. He was sentenced to confinement at hard labor for 2 months.
On 27 November 1968, the applicant was convicted by a SPCM of two specifications of being AWOL from 20 June to
24 August 1968 and from 3 September to 3 November 1968. He was sentenced to confinement at hard labor for 6 months.
On 16 May 1969, the applicant was convicted by a SPCM of being AWOL from 27 March to 22 April 1969. He was sentenced to confinement at hard labor for 6 months.
On 25 June 1969, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The commanders recommendation was based on the applicants frequent incidents of a discreditable nature with civil or military authorities and action which 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, he waived consideration, personal appearance, and representation before a board of officers.
A mental status evaluation found the applicant qualified for separation. There was evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels. He was considered mentally competent to participate in board proceedings.
On 11 August 1969, the appropriate authority approved the recommendation and directed the issuance of a UD. On
18 August 1969, the applicant was discharged in pay grade
E-1 under the provisions of Army Regulations 635-212, for unfitness with a UD. He had completed 11 months and 19 days of creditable active service and 490 days of lost time.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge 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 August 1969, 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 August 1972.
The application is dated 19 April 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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