MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 6 January 1999
DOCKET NUMBER: AC97-08848
AR1997002269
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.
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: That his records be corrected by upgrading his undesirable discharge. The applicant states that he was punished twice for the same offense.
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 19 January 1953, he was inducted into the Army for a period of 2 years.
On 19 May 1953, he was advanced to the pay grade of E-2.
Between 3 August 1953 and 18 June 1954, he was convicted by 4 summary courts-martial, for being absent without leave (AWOL), and 1 special court-martial for wrongfully having an instrument purporting to be a military pass. His punishments included forfeiture, confinement at hard labor, reduction and performance at hard labor.
The applicant had two company punishments for being AWOL for the periods 14-27 July 1953 and 15-28 March 1954. His punishment was 14 days hard labor and restriction.
On 10 June 1954, his commander recommended that he be eliminated under the provisions of Army Regulation 615-368 with an undesirable discharge. He states that by his actions and instability he has shown himself to be unfit for military service, that his repeated misconduct and disregard for duty clearly indicate he is unable to perform honorable military service.
On 30 June 1954, a final physical and mental evaluation cleared the applicant for separation.
On 15 July 1954, a board of officers convened under Army Regulation 615-368, recommended that the applicant be discharged with an undesirable discharge.
On 29 July 1954, the boards recommendation was approved.
On 31 August 1954, the applicant was discharged under the provisions of Army Regulation 615-368. His Report of Separation indicates he had 1 year, 7 months and 13 days of creditable service.
On 29 September 1969, the Army Discharge Review Board denied the applicants request to upgrade his discharge.
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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when 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 29 September 1969, the date the ADRB finalized their action. The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1972.
The application is dated 24 July 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
___tdh__ __lls______ __cwb___ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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