APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions 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:
He was born on 6 May 1946. On 29 May 1969, the applicant was inducted into the Army for 2 years. He completed the required training and was awarded military occupational specialty 11B10 (Light Weapons Infantryman).
On 9 September 1969, the applicant was convicted by a special court-martial of two specifications of disobeying a lawful order and for being disrespectful to a commissioned officer. He was sentenced to confinement at hard labor for 60 days and a forfeiture of $76 pay.
On 8 March 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully and willfully discharging a firearm in the barracks. His imposed punishment was a reduction to pay grade E-1 and 14 days restriction.
On 25 March 1970, the applicant accepted NJP, under Article 15, UCMJ, for disobeying a lawful order. His imposed punishment was 14 days extra duty.
On 31 March 1970, court-martial charges were preferred against the applicant for assault, for disobeying a lawful order and for communicating a threat. However, particulars are missing from his file.
On 5 April 1970, a mental and a physical evaluation found the applicant fit for retention.
On 6 April 1970, the applicant was notified that the commander was recommending a discharge under the provisions of Army Regulation 635-212 for unfitness. The recommendation was based on the applicants involvement in frequent incidents of a discreditable nature with military authorities. His commander recommended that he be issued a discharge under other than honorable condition (UOTHC). The applicant was advised by legal counsel of the contemplated separation action and the rights available to him. He waived personal appearance, consideration and representation by counsel before a board of officers.
On 22 April 1970, the commanding general approved the recommendation; waived rehabilitation requirements and directed the issuance of a discharge UOTHC. On 25 April 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness (frequent incidents of a discreditable nature with civil or military authorities), with a discharge UOTHC. He had completed 10 months and
27 days of creditable active service.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a (1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge UOTHC was normally considered appropriate.
There is no evidence in his Official Military Personnel File indicating that the applicant made any effort to have the alleged error or injustice corrected prior to this application.
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
25 April 1970, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 25 April 1973.
The application is dated 19 January 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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