APPLICANT REQUESTS: In effect, the applicant requests that his undesirable discharge be upgraded to honorable or general. He states that he does not believe his undesirable discharge was justified, because he was young and dumb. He went AWOL once but voluntarily returned. He associated with the wrong group of people, got drunk a few times, and didnt stand reveille. The black NCO did not like him. He states that both he and his wife actively support the VFW. He also contributes to the paralyzed veterans of America. The applicant provides signatures of nine individuals who support him in his effort to upgrade his 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:
The applicant was inducted into the Army on 28 October 1952.
On 10 March 1955 a board of officers convened to determine if the applicant should be eliminated from the Army. The applicant appeared before the board, stating that he did not want counsel.
The testimony of the board proceedings indicates that the applicant was not interested in doing his job, had a poor attitude, and was lax in his military duties. He had received a number of delinquency reports, nonjudicial punishment under Article 15, UCMJ, on two occasions, and punishment as a result of trial by court-martial on one occasion since being assigned to his unit. He was transferred to a different job as a result of his court-martial. The applicant had been apprehended for being in an off limits area. He was not reliable or trustworthy and had a poor appearance. He was a liability to the Army.
Further testimony indicates that the applicant had to be supervised in other than routine work, that he drank while on duty, and on several occasions was late for duty. The record of the proceedings show that the applicant was arraigned, tried and found guilty by two summary and two special courts-martial, once for assault, once for AWOL, once for larceny, and once for being in an off limits area. The record shows that he received nonjudicial punishment for being absent from guard mount, and for being in an off limits area.
The board found that the applicant was unfit, that he repeatedly committed petty offenses, and that he had undesirable traits of character. It recommended that he be discharged because of unfitness and that a Undesirable Discharge Certificate be furnished.
On 16 March 1955 the separation authority approved the boards recommendation. On 18 April 1955 the applicant received a medical examination. The report of that examination indicates that the applicant had an inadequate personality, but was medically qualified for separation with a physical profile
of 1 1 1 1 1 3.
The applicant was discharged under the provisions of Army Regulation 615-368, at Fort Lewis, Washington, on
20 April 1955. He had 1 year, 6 months, and 24 days of service, and 273 days of lost time.
Army Regulation 615-368, then in effect, set forth the
policy and procedures for separation of enlisted
personnel for unfitness. Unfitness included, in
addition to misconduct and repeated petty offenses,
habits and traits of character manifested by antisocial
or amoral trends, chronic alcoholism, criminalism, drug
addiction, pathological lying, homosexuality, sexual
perversion, habitual shirking, and repeated venereal
infections. Action to separate an individual was to be
taken when, in the judgment of the commander,
rehabilitation was unsuccessful, impractical or was
unlikely to produce a satisfactory soldier. 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
20 April 1955, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 20 April 1958.
The application is dated 16 November 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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