APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded to honorable. He states “because a series of events in [his] life left [him] profoundly unable to ever use a weapon on another human being” he should have been classified as a conscientious objector. He notes when he was in high school “he was drafted like his fellow classmates” and continually objected to carrying a rifle during basic training. He indicates that no one would listen to him and he was subjected to harassment, including assaults “with the butt of a rifle” on three separate occasions. He states at one time he was beaten so badly he was rendered unconscious. Ultimately he feared for his life and went AWOL. He was apprehended, returned to military control and received a special court-martial. After serving his time he states he received “a less than honorable discharge.” He states that he is requesting an upgrade now because he believes there was very little understanding of the term conscientious objector during the Vietnam War and now believes “people are willing and able to listen.”

In support of his request he submits a statement from his attorney and three psychologists One psychologist states he believes the applicant is a pacifist and notes he (the applicant) was never given an opportunity to express his conscientious objector status because the “drafting of all the senior males in his high school was expedited because it was across the street from the draftboard.” (Note: In the interest of time the applicant’s DD Form 293 was accepted in lieu of a DD Form 149.)

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 was born in Malta and immigrated to the United States in July 1958 at the age of 10. By 1965 he had completed three years of high school but there is no indication he ever graduated. At the time he was drafted on 2 April 1968 he was almost 20 years old and indicated on his personnel history statement that he had been unemployed since June 1967.

His entrance physical examination notes his health was fair and that he suffered from frequent headaches. He began basic training at Fort Gordon, Georgia on 10 April 1968. His service medical records note he reported to medical officials on 20 April 1968 with an abrasion on his head which he states resulted from being hit by a rifle the day before. He continued to seek medical attention for headaches on a recurring basis through 30 April 1968.

On 2 May 1968 he departed AWOL and returned to military control on 19 May 1969. In July 1968 he pled guilty to the AWOL charge and was sentenced to 6 months hard labor at the Fort Dix, New Jersey post stockade in addition to forfeiture of $76.00 per month for 6 months. In August 1969 he was transferred to the confinement facility at Indiantown Gap Military Reservation in Pennsylvania.

In November 1969 the commander of the confinement facility initiated action to administratively separate the applicant for unfitness under the provisions of Army Regulation 635-212. The initiating officer noted all attempts to rehabilitate the applicant had failed, he exhibited no motivation to return to duty and his behavior was antagonistic and belligerent. The recommendation noted the applicant had been involved in a series of discreditable incidents since his arrival at Indiantown Gap including disobeying orders, sleeping on work duty, being out of uniform and possessing unauthorized items. The commander stated that during counseling sessions the applicant “claimed to be an “acid head” having taken LSD and other drugs extensively.” He also noted the applicant indicated he would go AWOL again if he did not get “an AR 635-212” discharge.

During a separation physical examination, conducted on 5 November 1969, the applicant indicated he had suffered from headaches and nervousness all his life and had used LSD, marijuana and methedrine since the age of 16. He made no mention of any conscientious objector beliefs nor reference to any assaults occurring during basic training as a result of those beliefs.

An earlier psychiatric report concluded the applicant had no motivation for military duty and was “continuing his passive-aggressive adaptation to [military] life as he did in civilian life.” The summary report noted “in civilian life, he was expelled from school for cutting classes, then wandered about from city to city without gainful occupation.” The applicant reported to the evaluating psychiatrist that “he took LSD, literally hundreds of times…that if sent to Fort Riley, Kansas, or any other duty assignment, he [would] go AWOL as soon as possible.” The report concluded he was mentally responsible, that there was no mental or physical defects warranting disposition through medical channels and “psychiatrically cleared” the applicant “for any action deemed appropriate by command.”

The separation authority approved the recommendation and directed that an undesirable discharge be issued. On
29 December 1969 the applicant was separated under the provisions of Army Regulation 635-212. He had 1 month of creditable service and 606 days lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

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. 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 December 1969, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 December 1972.

The application is dated 16 January 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




                  Karl F. Schneider
                  Acting Director