| Mr. Loren G. Harrell | Director | |
| Ms. Gale Thomas | Analyst |
| Mr. James E. Vick | Chairperson | |
| Mr. John N. Slone | Member | |
| Mr. Raymond V. O’Connor, Jr. | Member |
APPLICANT REQUESTS: That his records be corrected by upgrading his discharge or by deleting his entire record. The applicant states that he joined the Army at the age of 16; that his immaturity was taken advantage of by his superiors; and his DD Form 214, incorrectly list his amount of service.
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 13 November 1961, he enlisted in the Regular Army for a period of 3 years.
On 6 September 1962, he was convicted by a summary court-martial for unlawfully striking another individual in the head with his fist and kicking him in the side with his foot; and for disobeying a lawful order from a commissioned officer to remain in the company area pending court-martial action. He sentence
was forfeiture of pay.
On 30 November 1962, he as convicted by a summary court-martial for disobeying a lawful order form a superior noncommissioned officer to wash GI cans. He was sentenced to 45 days of hard labor without confinement.
On 19 December 1962, he was convicted by a special court-martial for unlawfully entering the Mess Hal, with intent to commit larceny. He was sentenced to confinement at hard labor for one month.
On 13 April 1963, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for being absent from a company inspection without proper authority. His punishment was an oral reprimand and extra duty.
The applicant was absent without leave (AWOL) from 3 June 1963, until he was returned to military control on 12 July 1963.
On 29 July 1963, a physical examination medically qualified him for separation.
On 30 September 1963, a psychiatric evaluation found the applicant free of mental or physical disease, and mentally capable to understand and participate in board proceedings.
On 10 October 1963, having been advised by legal counsel, the applicant acknowledged that he understood the ramifications of receiving an undesirable discharge certificate, waived consideration and personal appearance before a board of officers, and declined legal counsel.
On 18 October 1963, he accepted NJP, under the provisions of Article 15, UCMJ, for being under the influence of alcohol, disorderly, and fighting. His punishment was restriction and extra duty.
On 1 November 1963, his commander recommended that he be separated from the service under the provisions of Army Regulation 635-208, because of frequent incidents of a discreditable nature with civil and military authorities, with the award of an undesirable discharge certificate.
On 19 November 1963, the appropriate separation authority approved the applicant’s discharge and directed he be reduced to pay grade E-1 and issued an undesirable discharge (UD) certificate.
On 22 November 1963, the applicant was discharge under the above cited regulation. His Report of Separation indicates he had 9 months and 5 days of creditable service and 106 days of lost time.
Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness. Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier. When separation for unfitness was warranted, a UD was normally issued.
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. 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 22 November 1963, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 22 November 1966.
The application is dated 3 July 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
___jev_ ____jns____ ____rvo_ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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