RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 August 2004
      DOCKET NUMBER:  AR2004100131


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his "blue" discharge be upgraded to an
honorable discharge.

2.  The applicant states that the review board felt that his problems were
not related to alcohol and that he believes that they were related to
alcohol.

3.  The applicant provides a hand-written note, and an authorization for
release of information.  The applicant stated that he provided a pamphlet
title " The Beacon Shines."  This pamphlet was not attached to his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 August 1945, the date of his separation.  The
application submitted in this case is dated 9 January 2003.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  All of the applicant’s military records are not available to the Board
for review. A fire destroyed approximately 18 million service members’
records at the National Personnel Records Center in 1973.  It is believed
that many of the applicant’s records were lost or destroyed in that fire.
However, the applicant's records contain sufficient documents for the Board
to conduct a fair and impartial review of this case.

4.  The applicant's records show that he was inducted into military service
on 24 September 1942 and that he entered active duty on 7 October 1942.

5.  On 11 April 1944, the applicant was convicted by summary court-martial
of wrongful possession of an enlisted member's pass.  He was sentenced to
reduction in grade to private/pay grade E-1 and forfeiture of $33.00.

6.  On 30 August 1944, the applicant was convicted by summary court-martial
of wrongfully appearing on the street after curfew.  He was sentenced to
hard labor without confinement for 30 days and forfeiture of $20.00.

7.  On 9 February 1945, the applicant was convicted by summary court-
martial of being absent without leave (AWOL) for the period 9 January 1945
through 29 January 1945.  He was sentenced to hard labor without
confinement for 1 month and forfeiture of $26.00.

8.  The facts and circumstances of the applicant's separation are not in
the documents available for consideration in this case.

9.  On 5 August 1945, the applicant was discharged with a "blue" discharge
certificate under the provisions of Army Regulation 615-368 (Enlisted Men-
Discharge Undesirable Habits or Traits of Character) for undesirable habits
and traits of character.

10.  The applicant's records contain an undated WDAGO Form 94 (Application
for Review of Discharge or Dismissal from the United States Army) wherein
the applicant requested that he be given an honorable discharge in place of
the "blue" discharge.

11.  On 25 April 1945, the Secretary of War's Discharge Review Board (now
known as the Army Discharge Review Board) considered the applicant's
request for upgrade of his discharge.  The Board denied the applicant's
request for upgrade of his "blue" discharge to an honorable discharge.

12.  On 24 June 1947, the Secretary of War's Discharge Review Board
notified the applicant that his application for a change in type or nature
of his separation was not favorably considered and that the prior action of
the War Department was confirmed.

13.  On 24 February 1981, the applicant submitted an application to the
Department of the Army Military Review Boards Agency requesting that his
discharge be upgraded from a "blue" discharge to an honorable discharge.

14.  On 16 July 1981, the applicant was notified by the Army Discharge
Review Board that his application had been received and that his request
for a records only review was granted.


15.  The applicant was notified on 23 February 1982 that his records were
considered by the Army Discharge Review Board and that after careful
consideration of his military records and other available evidence that his
request for a change in the type and nature of his discharge was denied.

16.  Historical records show that the "Blue" Discharge was issued to
individuals whose service was not dishonorable but who were not entitled to
a "testimonial of honest and faithful service" as indicated by an honorable
discharge.  Its use was first adapted to discharge inept enlisted personnel
or those who had habits or traits of character rendering their retention in
the service undesirable.  The "Blue" discharge did not include a
characterization of service.

17.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for undesirable habits
or traits of character.  The regulation provided, in pertinent part, for
the separation of personnel for the following reasons:  (1) gives evidence
of habits or traits of character which serve to render his or her retention
in the service undesirable, and his or her rehabilitation is considered
impossible after repeated attempts to accomplish same have failed; or (2)
gives evidence of a psychopathic personality manifested by antisocial or
amoral trends, chronic alcoholism, drug addiction, pathological lying, or
sexual misconduct in the service and cannot be rehabilitated to render
useful service.  The regulation provided that a WD AGO Form 53-56 (Blue)
would be furnished to all persons discharged under this regulation.

18.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his "blue" discharge be upgraded to an
honorable discharge because he has recovered from the alcohol problems and
has not had a drink in over 50 years.
2.  There is no evidence and the applicant has failed to provide evidence
that shows that his acts of indiscipline were caused by or related to the
use of alcohol.  Therefore, there is no factual basis for this claim.

3.  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.  These Boards independently determined that his separation
was correct and in conformance with the regulation in effect at the time of
the applicant's separation.

4.  The applicant's record of service included three summary courts-martial
and 21 days lost due to AWOL.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable
discharge.

6.  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.

7.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 August 1945, the date of his
separation.  However, the ABCMR was not established until 2 January 1947.
As a result, the time for the applicant to file a request for correction of
any error or injustice expired on 1 January 1950.

9.  However, records further show that the applicant exhausted his
administrative remedies in this case when his application was last reviewed
by the Army Discharge Review Board on 23 February 1982.  As a result, the
time for the applicant to file a request for correction of any error or
injustice to this Board expired on 22 February 1985.  However, the
applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
the failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___fe ___  ___wdp__  __clg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _____Fred Eichorn  _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100131                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/19                              |
|TYPE OF DISCHARGE       |Blue                                    |
|DATE OF DISCHARGE       |1945/08/05                              |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |Undesirable habits                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.000.0000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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