Search Decisions

Decision Text

ARMY | BCMR | CY1997 | 9705561
Original file (9705561.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect that his undesirable discharge (UD) be changed to honorable; that clemency be granted based on his age, 63 years old; and that his record be cleared for him and his grand children.

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:

On 21 October 1960 he reenlisted in the Regular Army for
6 years which is the period of service in question. At the time of his reenlistment the applicant had already served honorably for 7 years and 26 days for which he received a
DD Form 214.

His record of prior service includes successful completion of 2 years, 4 months, and 5 days of overseas service, award of the National Defense Service Medal, and receipt of the Good Conduct Medal. Additionally, the applicant had attained the rank of sergeant/E-5 in normal time parameters prior to being reduced for his infractions of discipline, which took place during the period of service in question, and for which his separation action was initiated.

The applicant was convicted by two special courts-martial, both for violation of Article 86 (AWOL). The first was for being AWOL between 1 December 1960 and 8 March 1961, for which he was sentenced to be reduced to the grade of specialist/E-4, and to forfeit $80 dollars per month for
6 months.

The second was for being AWOL between 4 April 1961 and
27 June 1961, for which he was sentenced to confinement at hard labor for 6 months, and forfeiture of $30 dollars per month for a like period.






On 19 September 1961 the applicant's unit commander initiated separation action under the provisions of paragraph 10c, AR 635-208, for unfitness, based on the applicant's record of convictions by courts-martial and time lost. Also included in the request were the commander's comments that the applicant had rebuffed all attempts at rehabilitation, and that lesser corrective administrative measures or more favorable separation action were not feasible. On 25 September 1961 the intermediate level commander recommended the applicant be separated for unfitness, and furnished a UD.

On 6 October 1961 the appropriate approval authority directed the applicant be discharged under the provisions of AR 635-208, and furnished a UD. Accordingly, on 21 October 1960 the applicant was discharged after completing 7 years, 2 months, 19 days of active military service, and accruing a total of 304 days of lost time.

Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service. Individuals discharged under this regulation would normally be issued a UD.

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
13 October 1961, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 13 October 1964.

The application is dated 2 November 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

Similar Decisions

  • ARMY | BCMR | CY1997 | 9705561C070209

    Original file (9705561C070209.TXT) Auto-classification: Denied

    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: On 21 October 1960 he reenlisted in the Regular Army for 6 years which is the period of service in question. On 19 September 1961 the applicant's unit commander initiated separation action under the provisions of paragraph 10c, AR 635-208,...

  • ARMY | BCMR | CY2004 | 2004099950C070208

    Original file (2004099950C070208.doc) Auto-classification: Denied

    The Board considered the following evidence: Exhibit A - Application for correction of military records. This document indicates that the applicant admitted to having difficulty in the military service and the applicant had numerous criticisms as to the way the Army was run. This DD Form 214 confirms that the applicant was separated under the provisions of Army Regulation 635-208, by reason of unfitness, and received an UD on 31 May 1963.

  • ARMY | BCMR | CY2006 | 20060005876C070205

    Original file (20060005876C070205.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2006 DOCKET NUMBER: AR20060005876 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. 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. As a result, there is no basis for granting the applicant's...

  • ARMY | BCMR | CY2004 | 2004100798C070208

    Original file (2004100798C070208.doc) Auto-classification: Denied

    The unit commander also states the applicant was good at performing those duties that he was assigned most of the time and that there appeared to be nothing wrong with him physically or mentally. The applicant may have performed assigned tasks well most of the time, even so, his personal conduct and attitude rendered both his conduct and efficiency rating unsatisfactory and he received no awards. The Board concludes that the applicant has provided no evidence to establish a basis for the...

  • ARMY | BCMR | CY2004 | 20040007316C070208

    Original file (20040007316C070208.doc) Auto-classification: Denied

    The applicant states that he was 17 when he enlisted into the service and had a hard time leaving his father. On 12 January 1961, the appropriate authority approved the recommendation for discharge due to unfitness and directed the applicant be issued an Undesirable Discharge Certificate. The applicant also accepted one NJP, was convicted by both a summary and special court-martial, was barred from reenlistment and was given a rehabilitative transfer after his release from confinement.

  • ARMY | BCMR | CY2005 | 20050017155C070206

    Original file (20050017155C070206.doc) Auto-classification: Denied

    The unit commander stated as a reason why it would not be considered feasible or appropriate to recommend elimination under the provisions of Army Regulation 635-209 was the applicant’s attitudes of complete disregard for authority and his attitudes toward life in general. On 7 December 1960, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208 with issuance of an Undesirable Discharge Certificate. After review of the evidence...

  • ARMY | BCMR | CY2001 | 2001061182C070421

    Original file (2001061182C070421.rtf) Auto-classification: Approved

    On 25 January 1961, while the applicant was confined at the Special Processing Detachment, he underwent a mental status evaluation by professionally trained personnel and was determined to be suffering from a passive aggressive reaction that existed prior to service. On 2 March 1961, the applicant was discharged for unfitness under the provisions of Army Regulation 635-208, with a UD. In light of his good post-service conduct, and considering the nature of his indisciplines while on active...

  • ARMY | BCMR | CY2003 | 2003090197C070212

    Original file (2003090197C070212.rtf) Auto-classification: Denied

    On 21 December 1961, a psychiatric evaluation was completed on the applicant. The evidence of record further shows that the applicant was represented by counsel during the board of officers proceedings, which were conducted to determine his suitability for continued service. BOARD DETERMINATION/RECOMMENDATION:

  • ARMY | BCMR | CY2004 | 20040011493C070208

    Original file (20040011493C070208.doc) Auto-classification: Denied

    The applicant requests, in effect, that his undesirable discharge be upgraded to a general, under honorable conditions discharge. The board recommended the applicant be discharged from the Army under provisions of Army Regulation 635-208 and given an Undesirable Discharge. On 25 July 1961, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge characterized as under other than honorable conditions.

  • ARMY | BCMR | CY2004 | 2004106244C070208

    Original file (2004106244C070208.doc) Auto-classification: Denied

    On 8 July 1960, the commanding general of the United States Army Ordnance Training Center, APG, denied the applicant’s request for hardship discharge. The applicant’s unit commander initiated action to eliminate the applicant from service under the provisions of Army Regulation 635-208, by reason of unfitness, and recommended that he receive an UD. On 28 November 1960, the applicant was discharged accordingly.