APPLICANT REQUESTS: In effect, an upgrade of his general discharge to an honorable discharge. He states, in effect, that his problems started after he married his first wife. Hes not proud of his conduct after that, but he has been a model citizen since his discharge. He has a terminal lung disease and cannot die in peace with this black mark hanging over his conscience.
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 show:
He was born on 18 March 1937. He completed 11 years of formal education. He enlisted in the Regular Army on 31 January 1955 for 4 years. He completed basic combat training and advanced individual training (AIT) and was awarded Military Occupational Specialty 941.10 (Cook). He was honorably discharged on 16 December 1957 for the purpose of immediate reenlistment on 17 December 1957 for 4 years.
On 18 May 1959, the applicant was convicted by special court-martial for being absent without leave (AWOL) from 20 March - 23 April 1959. He was sentenced to a reduction to pay grade E-1, hard labor without confinement for 3 months and to forfeit $40 pay for 5 months.
On 25 June 1959, the applicant was convicted by summary court-martial for being AWOL from 20 - 21 June 1959. He was sentenced to hard labor without confinement for 1 month and to forfeit $35 pay for 1 month.
On 10 August 1959, the applicant was evaluated by the mental hygiene clinic and found to be mentally competent, capable of distinguishing right from wrong and adhering to the right, and mentally capable of understanding board proceedings.
On 22 October 1959, the applicant was convicted by special court-martial for being AWOL from 30 September - 9 October 1959. He was sentenced to confinement at hard labor for 6 months and to forfeit $43 pay for 6 months.
On 25 November 1959, the applicant received a neuropsychiatric evaluation and was diagnosed as having a passive dependency reaction. Otherwise, the evaluating physician made the same observations as the mental hygiene clinic physician.
On 17 February 1960, discharge proceedings under Army Regulation 635-209 for unsuitability, character behavior disorder, were initiated.
On 25 March 1960, the applicant was advised of the basis for the discharge. He was afforded the opportunity to consult with counsel and declined. He waived all rights to appear before a board of officers. He elected not to submit a statement in his own behalf, but there is a statement in the discharge proceedings packet, wherein the applicant states, in effect, the cause for his AWOL was financial difficulties due to the age of his father, his inability to obtain a hardship discharge, and his wifes recent pregnancy.
No separation physical is on file.
On 12 April 1960, the appropriate authority approved the recommendation and directed the applicant receive a general discharge.
On 15 April 1960, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-209, unsuitability, character behavior disorder, with a general discharge. He had completed 4 years, 7 months and 20 days of creditable active service and had 208 days of lost time.
Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or transient personality disorder due to acute or special stress and was unlikely to develop sufficiently to participate in further military training and or become a satisfactory soldier, would be discharged for unsuitability.
There is no evidence the applicant ever submitted an application to the Army Discharge Review Board (ADRB); for an upgraded discharge.
While the Board has taken cognizance of the applicants good post-service conduct, this factor does not warrant the relief requested.
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 5 April 1960, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 15 April 1963.
The application is dated 28 May 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.
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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