APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to honorable. He states that his undesirable discharge was improper because it was based on one isolated incident in 19 months service, in which 12 months were in forward areas or in direct action with the enemy. His discharge was based on an allegation that was never proven. 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 were lost or destroyed in the National Personnel Records Center fire of 1973. The only pertinent information available is a report of proceedings of a board of officers and a medical record. On 22 July 1944 a board of officers met to determine if the applicant should be discharged prior to the expiration of his term of service. A sworn statement submitted to the board disclosed that the applicant had stated that throughout his life he had desired sexual relations with men, that he had engaged in sexual relations with other soldiers while at a training center, and had intercourse with other soldiers since joining his unit. The applicant admitted that he had voluntarily made this sworn statement. Statements made by other witnesses before the board indicate that the applicant had a general reputation of being a homosexual, that he had admitted to homosexual acts, and had a distinct aversion to sexual contact with women. An officer in his unit stated that his presence was destructive to the good order and discipline of the battalion. The applicant’s battalion commander stated that, in the course of an investigation into a shooting within the battalion, he discovered that the practice of sodomy was wide spread in the battalion, and that the applicant’s name was frequently mentioned with regard to homosexuality and sodomy. The battalion commander stated that the applicant and others of his ilk were a disturbing element of his command and seriously lowered the efficiency of his unit. The board found that the applicant gave evidence of habits and/or traits of character other than those indicating discharge for physical or mental conditions (He was unfit to associate with enlisted men), and that he was disqualified for service through his own misconduct, and could not be rehabilitated by further military training without detriment to the morale and efficiency of his or any organization. The board recommend that the applicant be discharged under the provisions of Army Regulation 615-360 on account of habits and traits of character which rendered his retention in the service undesirable, and disqualified in character for service, through his own misconduct. The board recommended that War Department A.G.O. Form No. 56 (Discharge from the Army of the United States (blue) be given him, and that his discharge certificate bear the entry, “Not recommended for reenlistment, induction, or reinduction.” On 25 July 1944 the convening authority approved the findings and recommendations of the board. The applicant was discharged under other than honorable conditions on 11 October 1944. Army Regulation 615-360, then in effect, provides the policy and procedures pertaining to the discharge of enlisted men. Section VIII of that regulation provides procedures for discharge because of inaptness or undesirable habits or traits of character, and states, in effect, that a soldier who gives evidence of habits or traits of character which serve to render his retention in the service undesirable, and rehabilitation of such enlisted man is considered impossible after repeated attempts to accomplish same have failed, or is disqualified for service, physically or in character, through his own misconduct, and cannot be rehabilitated so as to render useful service before the expiration of his term of service without detriment to the morale and efficiency of his organization, will be required to appear before a board of officers to determine if he should be discharged prior to the expiration of his term of service. That section goes on to say that a soldier found to be unfit because of undesirable habits or traits of character and subsequently discharged will be issued a War Department A.G.O. Form No. 56 (Discharge from the Army of the United States (blue)). 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 11 October 1944, the date of his discharge. However, in view of the fact that the Board was not established until 2 January 1947 the applicant's 3 year period in which to file an application for correction of military records expired on 2 January 1950; 3 years from the date the Board was established. The application is dated 23 May 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