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ARMY | BCMR | CY1997 | 9711469
Original file (9711469.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge. He states that an honorable discharge will help him get financial and housing assistance.
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 inducted into the Army of the United States on 26 November 1959. He completed basic training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

The applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on five separate occasions for various offenses, including insubordination, being disrespectful in language towards his superior non-commissioned officer, breaking restriction and not having a valid drivers license.

The applicant was cited for seven off-post offenses, including traffic offenses, aggravated assault, and an arrest warrant for paternity proceedings.

On 19 October 1960, the applicant was convicted by a summary court-martial of loitering on his post as sentinel.

On 5 January 1961, the applicant was convicted by a special court-martial of assault on his superior non-commissioned officer by attempting to hit him with his fist and being disrespectful in language towards that non-commissioned officer.

On 17 May 1961, the applicant was convicted by a special court-martial of assault by pointing a dangerous weapon, to wit, a knife, at an individual.

On 13 July 1961, the applicant received a psychiatric evaluation. He was found to be able to distinguish right from wrong and adhere to the right, with the mental capacity to understand and participate in board proceedings.

On 10 August 1961, the applicant’s commander recommended him for elimination under the provisions of Army Regulation 635-208 for frequent incidents of a discreditable nature with civil or military authorities.
On 16 August 1961, a board of officers considered his case and recommended his discharge for unfitness.

On 12 October 1961, the appropriate authority approved the recommendation.

On 27 October 1961, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208, with a discharge UOTHC. He had completed 1 year, 6 months and 4 days of creditable active service and had 148 days of lost time.

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 27 October 1961, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 27 October 1964.

The application is dated 12 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 :
EXCUSE FAILURE TO TIMELY FILE

 GRANT FORMAL HEARING

 CONCUR WITH DETERMINATION




 Loren G. Harrell
                                                      Director

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