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ARMY | BCMR | CY1997 | 9711423
Original file (9711423.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded. He states, in effect, that when he enlisted he was promised he would be stationed close to San Francisco so he could be close to home and go home on weekends. His father deserted his mother and someone had to be head man of the family. He was not knowledgeable of or ashamed of his discharge until recently.
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 15 January 1960, he enlisted in the Regular Army for assignment to the 43d Artillery, Fairchild Air Force Base, WA. He completed basic combat training and advanced individual training and was awarded military occupational specialty 171.00 (Air Defense Missile Crewman). He was assigned to the 43d Artillery on 25 April 1960.

The applicant was convicted by one summary and two special courts-martial for being absent without leave (AWOL) from 11 to 20 March 1961; 15 June to 11 September 1961; and 16 October 1961 to 5 April 1962, respectively.

On 16 April 1962, the applicant received a psychiatric evaluation. He was found to be able to distinguish right from wrong and to adhere to the right and to be mentally competent and responsible for his actions. The examiner also noted “He has never been able to adjust to military life and expressed his determination to be discharged. Repeated AWOL offenses have been designed toward this end.”

On 17 May 1962, the applicant completed a separation physical and was found qualified for separation.

The separation proceedings are not available.

On 11 July 1962, the applicant was notified, and he acknowledged such notification, that he was being issued an undesirable discharge. If he did not agree with the type of discharge, he could request review by the Army Discharge Review Board (ADRB), the request to be received by that board within 15 years of the effective date of his discharge.

On 11 July 1962, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208, with a discharge under other than honorable conditions. He had completed 1 year, 5 months and 6 days of creditable active service and had 381 days of lost time.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

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 my be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence the applicant ever applied to the ADRB for an upgrade of his discharge.

 DISCUSSION : The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 July 1962, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 11 July 1965.

The application is dated 9 April 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 :
GRANT

GRANT FORMAL HEARING

 DENY APPLICATION
                                                      Loren G. Harrell
                                                       Director

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