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ARMY | BCMR | CY1997 | 9708226
Original file (9708226.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 02 December 1998
         DOCKET NUMBER: AC97-08226


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell Director
Mr. Theodore Heartley Analyst


The following members, a quorum, were present:
Mr. Raymond V. O’Connor, Jr. Chairperson
Mr. George D. Paxson Member
Mr. John H. Kern Member


         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:

          Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS

 : In effect, that he be paid basic pay and allowances from July 1961 to the date of his hardship discharge. The applicant states, in effect, that he suffered mistreatment from military authorities who refused to pay him during the processing of his request for hardship 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 had a prior enlistment and served as a radio repairman from 7 February 1957 to 6 February 1960. He reenlisted on 3 May 1960 for a period of 3 years.

On 28 August 1961, he applied for a hardship discharge. He stated in his request, in effect, that he could not support his family on his military pay; that his wife, a Haitian national, spoke little English, did not drive, knew no one in the local community and was pregnant with their second child and severely depressed over their financial circumstances. He further stated that he could not send his family back home to Haiti because the cost of living was very high and the political climate unstable; and that a hardship discharge would allow him to accept an offer for civilian employment, thereby, enable him to provide better care for his family.

There was no evidence in his records showing the disposition of his request for hardship discharge.

On 6 April 1962, he submitted a second request for hardship discharge. The basis for his request was severe financial hardship as indicated by supporting statements from creditors and a summary of his financial obligations totaling $4,645.00. His request was approved on 27 April 1962.

In a supporting endorsement, the applicant’s unit commander mentioned that his financial strife was attributed, partly, to poor financial management and economic difficulty due to his wife’s hospitalization during her pregnancy.

His DD Form 214, separation document, shows that he was separated with a hardship discharge on 18 May 1962 under the provisions of Army Regulation 635-207. The characterization of his service was honorable and he had completed a total of 5 years and 16 days of active federal service. He was charged 38 days of excess leave from 9 January 1962 to 14 January 1962; 26 January 1962 to 24 February 1962; and 31 March 1962 to 1 April 1962.

Army Regulation 635-207, in effect at the time, pertained to the separation of enlisted personnel because of genuine dependency or hardship. This provision of the regulation stated, in effect and in pertinent part, that an application for such separation will be approved when a service member can substantiate that his situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary and that discharge will improve the situation.

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 18 May 1962, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 18 May 1965.

The application is dated 25 March 1997 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

                  Loren G. Harrell
                  Director


INDEX
CASE ID AC
SUFFIX
RECON YYYYMMDD
DATE BOARDED YYYYMMDD
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION (NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.


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