ABCMR Memorandum of
APPLICANT REQUESTS: That his dishonorable discharge (DD), issued as the result of a
conviction by a general court-martial, be upgraded, presumably to either general or honorable. He
states that the incident for which he was convicted happened more than 20 years ago when he was
an alcoholic. He states that he is sober and a different person today. He provides letters of
support from various friends and acquaintances.
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 born on 27 November 1954. After failing to graduate from high school, he enlisted in the
Regular Army for 3 years on 18 October 1974. Following completion of the required military
training, he was assigned to a unit in the 1st Cavalry Division, with duty as an infantryman.
In November 1976, the applicant was transferred with his unit to Germany. On the evening of 16
December 1976 in Wildflecken, Germany, the applicant and a friend entered a pizzeria to buy a
pizza. Although there were two soldiers in the pizzeria eating at the time, the proprietor was in the
process of closing and would not serve the applicant and his friend. The two then went over to the
soldiers who were eating in an attempt to get some pizza. After failing to get some pizza, the
applicant and his friend went outside.
When the two soldiers finished eating, they exited the pizzeria and were attacked by the applicant
and his friend. One of the soldiers was knocked to the ground and punched and kicked by both of
his assailants. The applicant then jumped on his back and stabbed him in the back of his head with
a pocket knife. The attack was witnessed by three other soldiers who identified the applicant and
his friend as the assailants, and the applicant, specifically, as the one who stabbed the victim.
Following the attack, the applicant and his friend ran away. When military police authorities
apprehended him in his barracks, the applicant had blood on his clothes and the victim’s wallet in
Although he pleaded not guilty, the applicant was convicted of aggravated assault by a general
court-martial on 8 February 1977 (he was found not guilty of stealing the wallet). He was
sentenced to a DD, confinement at hard labor for 2 years, and total forfeiture of all pay and
allowances. He was transferred to the United States Disciplinary Barracks, Fort Leavenworth,
Kansas. His DD was executed on 4 June 1979. He had 2 years, 5 months, and 14 days of
creditable service and 613 days of lost time due to confinement.
Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and
discharge were effected in accordance with applicable law and regulations, and the DD
appropriately characterizes the misconduct for which the applicant was convicted.
The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military
correction boards may not disturb the finality of a conviction by court-martial.
ABCMR Memorandum of
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 June 1979, the date of discharge. The time for the applicant to file a request for
correction of any error or injustice expired on 4 June 1982.
The application is dated 21 September 1994 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.
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider