APPLICANT REQUESTS: That his discharge for unsatisfactory performance be corrected to a medical discharge. He states that he had fractured his nose in 1982 and had injured his lower back in 1983. Those injuries resulted in his being given physical profile limitations, bed rest and the recommendation for surgery.
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 enlisted in the Regular Army on 6 January 1981 and was awarded the military occupational specialty of infantryman.
On 9 December 1992 the applicant's commander recommended his discharge for unsatisfactory performance. That recommendation was based on his acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ, on four occasions, and on his conviction by a summary
court-martial. The applicant had been afforded the rights that are provided to a soldier being considered for involuntary separation and had waived those rights.
The applicant was given a separation physical examination and was found to be medically qualified for retention without any profile limitations. On that report of examination he himself wrote Excellent condition in
item 8, Statement of examinees present health and medications currently used.
That recommendation was then approved by the appropriate authority and the applicant was given a General Discharge Certificate on 22 March 1984 in pay grade E-3 under the authority of Army Regulation 635-200, chapter 13, unsatisfactory performance. His DD Form 214 shows he completed 3 years, 2 months and 14 days of creditable service and had 3 days of lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
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
22 March 1984, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 22 March 1987.
The application is dated 2 July 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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