APPLICANT REQUESTS: The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge. He states, in effect, that he was in a motor vehicle accident around April 1961 that caused him to have seizures. He was told he would get a medical discharge, but when he was transferred to Ft Hamilton he was given an undesirable discharge (later upgraded to a general 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 applicants military records may have been lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed personnel records.
He was born on 5 December 1940. He completed 9 years of formal education. The applicant had had some previous service in the National Guard when he was inducted into the Army of the United States on 27 February 1959. He was honorably discharged and immediately enlisted in the Regular Army on 15 May 1959 for 3 years. He completed basic training and was awarded Military Occupational Specialty 640.00 (Light Vehicle Driver).
Between September 1959 and June 1961, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on seven different occasions for various minor offenses.
On 17 March 1960, the applicant was convicted by a special court-martial for being absent from bed check and disobeying a lawful order from a non-commissioned officer.
On 8 August 1960, the applicant was convicted by summary court-martial for failure to go to his appointed place of duty.
On 10 April 1961, the applicant as convicted by summary court-martial for failure to go to his appointed place of duty.
The applicants discharge proceeding documents are not available; however, an extract from the documents are included in the applicants Army Discharge Review Board (ADRB) appeal.
On 10 May 1961, the applicant received a neuro-psychiatric evaluation. He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, with the mental capacity to understand and participate in board proceedings. He had no disqualifying mental or physical disease or defect sufficient to warrant disposition under Army Regulation 635-40. It is noted that an extract from the applicants medical records shows an entry for 29 June - 1 July 1961, for treatment at United States Army Hospital Verdun, with a diagnosis of convulsive disorder, etiology unknown.
On 20 June 1961, the applicants company commander recommended him for elimination under the provisions of Army Regulation 635-208 for, basically, being a chronic offender and an ineffective and substandard soldier. The applicant was counseled and advised of the basis for the action. He declined counsel, waived action by a board of officers, and elected not to submit a statement in his own behalf.
On 17 August 1961, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208, for unfitness. He had completed 3 years, 8 months and 6 days of creditable active service and had no lost time.
On 27 March 1963, the applicant applied to the ADRB for an upgrade of his discharge. However, he failed to respond to correspondence from that board, so his request was returned without action.
On 9 March 1966, the applicant reapplied to the ADRB for upgrade of his discharge. The Board proceedings are not available, but on 15 August 1966 the ADRB concluded the applicant was entitled to a general under honorable conditions discharge and provided him with a General Discharge Certificate and a corrected DD Form 214.
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 ADRB are by statute allowed 15 years to apply there, and that this Boards 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 action 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 15 August 1966, the date the ADRB upgraded the applicants discharge. The time for the applicant to file a request for correction of any error or injustice expired on 15 August 1969.
The application is dated 13 April 1996. 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
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