APPLICANT REQUESTS: That his honorable discharge be changed to a medical discharge.
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 for 3 years on 3 June 1969 and was honorably discharged after 2 years, 6 months and 12 days service on 14 December 1971 in pay grade E-3. His only award is the National Defense Service Medal.
The applicant served in Okinawa from 26 December 1969 to 27 July 1971. There, on 9 November 1970 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failure to report to his appointed place of duty. He again accepted NJP on 16 November 1970 for disrespect to an NCO.
On 2 March 1971 he was convicted by a special court-martial of disobeying an order, being disorderly in a public place, failing to pay a debt, damaging government property and failure to obey a lawful regulation. He was sentenced to be reduced to pay grade E-1 and to be confined at hard labor for 5 months. The confinement portion of the sentence was suspended by the convening authority.
The available records contain no information regarding medical treatment that might justify a medical separation rather than the administrative (honorable) separation that he received. Further, he provides no information to support his claim that he should receive a medical discharge, and apparently provided none at the time of his separation, since the information for his separation document was obtain from the applicant himself and makes no mention of a potential physical disability.
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 December 1971, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 December 1974.
The application is dated 9 October 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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