| Mr. Carl W. S. Chun | Director | |
| Mr. Robert J. McGowan | Analyst |
| Mr. Stanley Kelley | Chairperson | |
| Mr. Christopher J. Prosser | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his undesirable discharge (UD) be upgraded to general or honorable. He states that he was on leave for 2 weeks. On the day he was due to return to duty, his grandfather died and he called his unit to ask for a leave extension to attend the funeral. His request was denied and he went AWOL (absent without leave). He adds that his UD has wrecked his life; he could not find work; his wife and family left him; he is now in need of medical 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 enlisted in the Regular Army for 3 years on 21 December 1964 and served in military occupational specialty (MOS) 91A (Medic). He was honorably discharged on 19 October 1966 for the purpose of immediate reenlistment for 6 years. He reenlisted on 20 October 1966.
On 16 March 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying the lawful order of his company commander. As punishment, he was reduced from Specialist (SP4/
E-4) to Private First Class (PFC/E-3).
On 28 March 1967, the applicant again accepted NJP, this time for failure to go to his place of duty and for being absent from his place of duty. As punishment for these offenses, he was reduced to Private (PV2/E-2).
On 10 May 1967, the applicant's MOS was withdrawn because of unsatisfactory efficiency. On 19 May 1967, he was reclassified to MOS 94A (Cook's Helper).
The applicant was AWOL from his unit from 29 May - 12 June 1967. On 23 June 1967, he was tried and convicted by a summary court-martial of being AWOL and sentenced to hard labor without confinement for 30 days, and forfeiture of $60 pay per month for 1 month.
The applicant was AWOL from his unit from 8 August 1967 - 27 December 1967. On 23 January 1968, he was tried and convicted by a special court-martial of being AWOL and sentenced to confinement at hard labor for 6 months, and forfeiture of $60 pay per month for 6 months.
The circumstances surrounding the applicant's discharge are not contained in his service record. However, there is a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 March 1968 and authenticated by the applicant's signature, which indicates that he was separated with a UD under the provisions of Army Regulation 635-212, for unfitness.
Army Regulation (AR) 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation provided that service members discharged for unfitness would be furnished an undesirable discharge, unless circumstances warranted a general or honorable discharge. Service members discharged for unsuitability would be furnished an honorable or general discharge.
The applicant did not apply to the Army Discharge Review Board for upgrade of his discharge within that board's 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 4 March 1968, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 4 March 1971.
The application is dated 14 December 2002 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.
The applicant's record demonstrates that, following his reenlistment on 20 October 1966, his conduct and efficiency rapidly deteriorated. He received two NJP's, two convictions by courts-martial, and his MOS was withdrawn for inefficiency. The applicant also had multiple period of AWOL, the last being for a period of 142 days. Even if the applicant's story about his grandfather's funeral were true, there can be no valid explanation for his remaining absent for 142 days.
The applicant demonstrated his unfitness to remain in the Army and the Board finds that his separation under the provisions of AR 635-212 was completely appropriate.
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.
Prior to reaching this determination, the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__sk____ __cjp___ __jtm___ CONCUR WITH DETERMINATION
| CASE ID | AR2002084350 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030911 |
| TYPE OF DISCHARGE | UD |
| DATE OF DISCHARGE | 19680304 |
| DISCHARGE AUTHORITY | AR 635-212 |
| DISCHARGE REASON | A51.00 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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