APPLICANT REQUESTS: In effect, the applicant requests that his discharge under conditions other than honorable be upgraded to honorable. He states that he left Vietnam for the United States on emergency leave and was told that he would be reassigned to a location in the United States after his leave ended. He got an extension on his leave, but overstayed that leave by two days and turned himself in. He was then told that he was still on leave and to go home and await orders. He states that he was picked up because he did not have leave papers, confined in the Fort Sill, Oklahoma stockade, and given an undesirable discharge. He has agent Orange but cant to go an Army hospital. The draft dodgers that went to Canada had their discharges upgraded. They ran, whereas he went to Vietnam.
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 had prior National Guard service. He was inducted into the Army on 2 June 1966, and in August 1966 was assigned to Fort Hood, Texas. On 25 August he received nonjudicial punishment under Article 15, UCMJ, for AWOL from 6 August to 16 August. In December 1966 he was assigned to an armored unit in Vietnam.
On 20 March 1967 the applicant returned to the United States on a 30 day leave, for compassionate reasons. He received a leave extension until 5 May 1967, overstayed that leave, and surrendered to authorities at Fort Sill on 23 May 1967. Subsequent to that date, those authorities determined that he had been granted a second extension of his leave, and had a new reporting date of 30 May 1967 to Oakland, California for further shipment to Vietnam. The pending AWOL charge against the applicant was dropped.
The applicant was AWOL from 30 May 1967 until
16 February 1968. He was arraigned, tried, and found guilty of this AWOL by a special court-martial on 26 March 1968 and confined to the Fort Sill post stockade. The applicant was in confinement until 5 May 1968. He was AWOL from 15 May to 5 August 1968 and on 3 September was arraigned, tried, and found guilty of that AWOL. He was in confinement from
7 August 1968 until 2 January 1969. On 3 January he was enroute for assignment to Fort Hood, Texas.
The applicant had three more periods of AWOL, from
13-19 January 1969, from 21 January to 6 April 1969, and from 15 April to 23 July 1969. He again was arraigned, tried, and found guilty of these periods of AWOL and confined in the Fort Sill post stockade.
A 25 August 1969 psychiatric evaluation indicates that the applicant stated that he disliked the Army, resented authority and military discipline, drank excessively, and had several civilian convictions for driving while intoxicated, reckless driving, and destroying public property. The psychiatrist stated that the applicant had a passive-aggressive personality disorder, chronic, severe, manifested by alcohol habituation, intolerance of authority and delinquency. He was mentally responsible, able to distinguish right from wrong, and adhere to the right and to understand and participate in board proceedings. The applicant was mentally and physical qualified for retention in the Army and was psychiatrically cleared for any administrative or disciplinary action. That official stated that the applicant would continue to be a non-effective soldier and recommended that he be separated under the provisions of Army Regulation 635-212.
A 9 September 1969 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile of 1 1 1 1 1 1. In the report of medical history he furnished for the examination, the applicant stated his health was Good.
On 16 September 1969 the applicants commanding officer recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-212. The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effect and the rights available to him. He stated that he understood the nature and consequences of the undesirable discharge that he might receive. He declined to make a statement in his own behalf. On 30 September 1969 the separation authority approved the recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate. He was discharged on
14 October 1969. He had 1 year, 2 months, and 17 days of service and 816 days of lost time.
Army Regulation 635-212, in effect at the time, set forth
the basic authority for the elimination of enlisted
personnel. Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents
of a discreditable nature with civil or military
authorities. When separation for unfitness was
warranted 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
14 October 1969, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 October 1972.
The application is dated 3 June 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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