APPLICANT REQUESTS: That his undesirable discharge be upgraded to general. He was discharged because of civil confinement as a result of a nonmilitary offense. He had an incompetent counsel, and was young and inexperienced. The military should have helped him.
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 was inducted on 24 November 1972. He completed basic training at Fort Knox, Kentucky and in February 1973 was assigned to Fort Polk, Louisiana for advanced training. On 6 March 1973 he received nonjudicial punishment under Article 15, UCMJ, for disobedience of a lawful order.
The applicant was AWOL from 2 May 1973 to 2 July 1973. He was confined by civil authorities in the Monroe County Jail, Key West, Florida for breaking and entering, with intent to commit a felony, to wit: grand larceny. On 5 October 1973 the applicant pled guilty to the crime of breaking and entering, with intent to commit grand larceny, in the circuit court of the sixteenth judicial circuit for Monroe County, Florida. He was adjudged guilty and on
28 November 1973 was sentenced to confinement for one year, with credit for time already served in the amount of 149 days.
On 3 January 1974 the applicant was assigned to the Personnel Control Facility at Fort Gordon, Georgia for discharge processing.
On 28 January 1974 the applicant was notified that he was being processed for discharge for conviction by a civil court-in civil confinement, under the provisions of Army Regulation 635-206. He was advised that he could request appointment of a military counsel to represent him and to present his case before a board of officers. He could submit statements in his own behalf. He could waive the foregoing rights in writing. The applicant did waive his rights in writing. On 2 February 1974 the applicant stated that he did not intend to appeal his civil conviction.
A 4 March 1974 statement indicates that the applicant was unavailable to take a separation physical and mental evaluation because of civil confinement.
On 5 March 1974 the applicants commanding officer recommended that the applicant be discharged under the provisions of Army Regulation 635-206 because of his civil conviction. On 13 March 1974 the separation authority approved that recommendation and directed that the applicant receive an Undesirable Discharge Certificate.
The applicant was discharged at Fort Gordon on
28 March 1974. He had 5 months and 4 days of service, and 331 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.
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
28 March 1974, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 28 March 1977.
The application is dated 25 November 1995 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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