APPLICANT REQUESTS: That the undesirable discharge given to him while he was in the penitentiary be upgraded.
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 2 October 1964 with a waiver for two offenses of drunk and disorderly. During his period of active duty he was arrested and convicted by civil authorities on three occasions and twice convicted by special court-martial for AWOL. He escaped twice from military confinement was arrested by civilian authorities on 4 August 1967 for burglary, and was sentenced to serve 1 to 5 years in the penitentiary. The commander recommended immediate discharge for the civil conviction and the applicant received an undesirable discharge on 30 November 1967.
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.
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.
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
30 November 1967, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 30 November 1970.
The application is dated 25 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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