APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to honorable. He states that he served in combat and won many combat decorations. He does not believe that his absence without leave (AWOL) warrants a UD.
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 reconstructed personnel records.
The applicant was born on 1 August 1933 and enlisted in the Regular Army for 3 years on 8 March 1951. He saw service in the Far East Command from 31 March 1951 to 3 June 1952 and was awarded the Korean Service Medal and United Nations Service Medal.
After returning from overseas, the applicant was tried and convicted by five separate special courts-martial for violations of Article 86 (AWOL), Manual for Courts-Martial.
Finally, in December 1954, his commander processed him for discharge under the provisions of Army Regulation 615-368 for unfitness.
The applicant appeared with counsel before a board of officers on 7 January 1955 to determine whether or not he should be separated from the Army. The board heard testimony concerning the applicants physical and mental health (both good) and his history of indiscipline. It was shown that he had been convicted by five special courts-martial and had appeared before two previous boards of officers to show cause as to why he should not be separated. After hearing all evidence, the board voted to separate the applicant with a UD.
The applicant was separated on 27 January 1955 with a UD. He had 2 years, 8 months, and 26 days of creditable service and 419 days of lost time due to AWOL and confinement.
Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for reasons of unfitness. The regulation provided, in pertinent part, that members guilty of repeated misconduct were subject to separation. 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 27 January 1955, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 27 January 1958.
The application is undated, but received on 5 September 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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