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ARMY | BCMR | CY1997 | 9709694
Original file (9709694.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests that his bad conduct discharge be upgraded to an honorable or general under honorable conditions discharge. His counsel states, in effect, that he went AWOL trying to get home to help his family. Being black was part of the reason for a bad conduct 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 are not available. Information herein was obtained from the Judge Advocate General’s Office court-martial records.

The applicant was born on 4 July 1930. He was inducted into the Army of the United States on 13 January 1951. He completed basic training.

On 28 August 1951, the applicant was convicted by a summary court-martial for being AWOL 7 - 20 August 1951. His approved sentence included confinement at hard labor.

On 15 March 1952, the applicant was convicted by a special court-martial for being AWOL 5 - 21 January 1952 and 5 February - 5 March 1952. His approved sentence included confinement at hard labor.

On 8 November 1952, the applicant was convicted by a special court-martial for being AWOL 1 - 2 October 1951 and for unlawfully impersonating a non-commissioned officer. His approved sentence included confinement at hard labor.

On 14 March 1953, the applicant was convicted by a general court-martial for being AWOL 7 - 11 February 1953. He was sentenced to receive a bad conduct discharge, to forfeit all pay and allowances, and to confinement at hard labor for 3 months.

On 3 April 1953, the sentence was affirmed by a Board of Review.

On 14 May 1953, the entire sentence was suspended for 3 months.

On 22 July 1953, action was taken to vacate the suspended sentence due to the applicant being AWOL 1 - 5 July 1953.

On 22 July 1953, the applicant made a sworn statement to the effect that, on 1 July 1953 he went to Temple, Texas with the intention of returning before 0100 2 July 1953. At some point he started drinking, blacked out, and lost his memory. He regained his memory in the Temple City Jail on 5 July 1953. He realized he was AWOL and upon being released he voluntarily returned to his unit.

On 23 July 1953, the suspended sentence was vacated.

On 6 August 1953, the applicant was released from the Army with a bad conduct discharge

There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed before 26 October 1961 or within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board 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 6 August 1953, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1961.

The application is dated 18 June 1997. 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.

There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.

Trial by court-martial was warranted by the offense charged and by consideration of previous convictions. Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

 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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