Search Decisions

Decision Text

ARMY | BCMR | CY1996 | 9610714C070209
Original file (9610714C070209.txt) Auto-classification: Denied
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

Similar Decisions

  • ARMY | BCMR | CY2002 | 2002072219C070403

    Original file (2002072219C070403.rtf) Auto-classification: Approved

    When the applicant informed Army officials that he could no longer perform his military duties he was separated with a less than honorable discharge with a poor characterization of service. The characterization of an “Under Other Than Honorable Conditions” discharge is a degradation of the “Blue Discharge” that he was issued at the time of discharge under regulations and policy that existed at that time. The applicant was required to appear before a board of officers to determine his...

  • ARMY | BCMR | CY1996 | 9606716C070209

    Original file (9606716C070209.txt) Auto-classification: Denied

    On 7 March 1944 his commanding officer recommended that the former soldier be discharged. He stated that he always had an uncontrollable temper and if anyone said anything cross to him, he would strike him. It appears that the intent of Army Regulation 635-209 was to change the policy for separating soldiers with undesirable habits and traits of character, recognizing that these unsuitable habits included chronic alcoholism, and soldiers separated for unsuitability should receive a general...

  • ARMY | BCMR | CY2008 | 20080013340

    Original file (20080013340.txt) Auto-classification: Denied

    The applicant requests that his general discharge be upgraded to an honorable discharge. The applicant provides the following additional documentary evidence in support of his application: a. WD AGO Form 53-58 (Enlisted Record and Report of Separation, General Discharge), dated 28 June 1948. b. However, the applicant’s WD AGO Form 53-58 shows he was separated on 28 June 1948 in accordance with Army Regulation 615-368 (Undesirable Habits or Traits of Character Discharge), by reason of...

  • ARMY | BCMR | CY2004 | 2004100131C070208

    Original file (2004100131C070208.doc) Auto-classification: Denied

    All of the applicant’s military records are not available to the Board for review. Records show that the applicant's request for upgrade of his "blue" discharge was considered twice by Department of the Army Military Discharge Review Boards. Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and that the type of discharge directed and the reasons for separation were appropriate considering all of the facts of this case.

  • ARMY | BCMR | CY2002 | 2002085638C070215

    Original file (2002085638C070215.rtf) Auto-classification: Denied

    The regulation states that an individual separated under this regulation will be furnished an honorable or general discharge. The Board considered the applicant's request to change his discharge to Army Regulation 615-365 or Army Regulation 615-360. The applicant has failed to show through the evidence submitted or the evidence of record that the reason and authority for separation issued to him was in error or unjust.

  • AF | BCMR | CY1999 | 9801991

    Original file (9801991.doc) Auto-classification: Denied

    On 3 Jan 45, the Report of Proceedings of the Board of Officers findings were that the applicant gave evidence of traits of character other than those indicating discharge for physical or mental conditions as provided for in Section II (he was unfit to associate with enlisted men). Based on information contained in applicant’s application, information contained in the Discharge Board proceedings and applicant’s master personnel records, DPPRS finds no new evidence to indicate his discharge,...

  • ARMY | BCMR | CY2004 | 20040007323C070208

    Original file (20040007323C070208.doc) Auto-classification: Denied

    On 2 January 1946, the Board of Officers recommended that the applicant be discharged from the service under the provisions of Army Regulation 615- 369 on account of inaptness. The Board noted that the "Blue" discharge provides no characterization of service and was used because the applicant's service did not show a testimonial of honest and faithful service required for an honorable discharge. Records show the applicant should have discovered the error or injustice now under...

  • ARMY | BCMR | CY2015 | 20150002760

    Original file (20150002760.txt) Auto-classification: Denied

    The applicant, son of the deceased former service member (FSM), requests an upgrade of his father's other than honorable discharge to an honorable discharge. The applicant states: a. The available evidence suggests that the FSM received a blue discharge because his service did not meet the criteria for an honorable discharge.

  • ARMY | BCMR | CY2012 | 20120017703

    Original file (20120017703.txt) Auto-classification: Denied

    The military medical officer stated the applicant was undesirable as a Soldier. On 18 January 1956, the applicant's immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the applicant's fitness for retention. The board found him unfit for retention and recommended his discharge with an Undesirable Discharge Certificate.

  • ARMY | BCMR | CY2003 | 2003086893C070212

    Original file (2003086893C070212.rtf) Auto-classification: Denied

    EVIDENCE OF RECORD : The applicant’s military records were not available to the Board for review. The ADRB decisional document also indicated that the action of the board of officers and the separation authority in determining the type of discharge to be issued to the applicant was amply supported by the evidence, and that no additional evidence of sufficient weight and credibility to warrant an upgrade had been presented. The evidence also shows that the applicant’s request for an upgrade...