APPLICANT REQUESTS:  In effect that his undesirable discharge (UD) be changed to honorable; that clemency be granted based on his age, 63 years old; and that his record be cleared for him and his grand children.

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 21 October 1960 he reenlisted in the Regular Army for 
6 years which is the period of service in question.  At the time of his reenlistment the applicant had already served honorably for 7 years and 26 days for which he received a 
DD Form 214.

His record of prior service includes successful completion of 2 years, 4 months, and 5 days of overseas service, award of the National Defense Service Medal, and receipt of the Good Conduct Medal.  Additionally, the applicant had attained the rank of sergeant/E-5 in normal time parameters prior to being reduced for his infractions of discipline, which took place during the period of service in question, and for which his separation action was initiated.

The applicant was convicted by two special courts-martial, both for violation of Article 86 (AWOL).  The first was for being AWOL between 1 December 1960 and 8 March 1961, for which he was sentenced to be reduced to the grade of specialist/E-4, and to forfeit $80 dollars per month for
6 months.

The second was for being AWOL between 4 April 1961 and 
27 June 1961, for which he was sentenced to confinement at hard labor for 6 months, and forfeiture of $30 dollars per month for a like period.






On 19 September 1961 the applicant's unit commander initiated separation action under the provisions of paragraph 10c, AR 635-208, for unfitness, based on the applicant's record of convictions by courts-martial and time lost.  Also included in the request were the commander's comments that the applicant had rebuffed all attempts at rehabilitation, and that lesser corrective administrative measures or more favorable separation action were not feasible.  On 25 September 1961 the intermediate level commander recommended the applicant be separated for unfitness, and furnished a UD.  

On 6 October 1961 the appropriate approval authority directed the applicant be discharged under the provisions of AR 635-208, and furnished a UD.  Accordingly, on 21 October 1960 the applicant was discharged after completing 7 years, 2 months, 19 days of active military service, and accruing a total of 304 days of lost time.

Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

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
13 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 13 October 1964.

The application is dated 2 November 1996 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

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director