MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 July 2001                   
	DOCKET NUMBER:   AR2001057680

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his commission be reinstated.

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 inducted into the Army on 12 February 1942.  He was honorably discharged on 26 August 1942 to accept a commission on 27 August 1942.  He was an intelligence staff officer in the rank of captain when he was released from active duty on 12 April 1946 and reassigned to the Officer Reserve Corps.  He was promoted to major while in the Officer Reserve Corps.

On 6 November 1950, The Adjutant General sent the applicant a confidential notification listing 26 alleged incidents indicating that the applicant was, in effect, a Communist or sympathetic to the Communist Party.  The letter itself is not available.  The alleged incidents occurred between March 1941 and January 1950.  He was allowed 30 days in which to rebut the allegations.  He apparently was advised that he had no alternative other than perhaps demanding court-martial.  He indicates that he “therefore denounced this ‘confidential’ communication as evidence of the paranoia then afflicting government.”  He then received a letter from the Army dated 28 December 1950, signed by The Adjutant General, stating that he was discharged from his commission as a major, Army of the United States, effective 28 December 1950.  This was apparently a general under honorable conditions discharge.  The discharge certificate is not available.

The applicant’s discharge was reviewed by the Army Council of Review Boards on 21 December 1956 and apparently was not changed.  That case is not available.  

In response to a Congressional inquiry in 1969, The Adjutant General informed a Senator that the applicant had been discharged from his commission on 
28 December 1950 as noted above but a later review determined that his commission had expired by operation of law prior to the 1950 decision.  The     28 December 1950 letter was therefore revoked, and on 20 June 1958 the applicant was furnished with a letter indicating that his appointment terminated by operation of law on 30 June 1948.  Neither the revocation nor the 20 June 1958 letter is available.

Special Regulation 600-220-1 dated 19 January 1950 prescribed procedures whereby disloyal or subversive military personnel in all components except the National Guard not on Federal active service would be discharged from the military service.  Activities and associations which could be considered as establishing reasonable grounds for the discharge of disloyal or subversive military personnel included but was not limited to advocacy of revolution, force, or violence for the purpose of altering the existing constitutional form of government of the United States, or to effect an economic, political, or social change in the United States; and membership in, affiliation with, or sympathetic association with any foreign or domestic organization, association or combination of persons which practiced, sought to practice, or advocated alteration, through or with the aid of force, violence, or intimidation, of the existing constitutional form of government of the United States which was disclosed or designated to be totalitarian, fascist, communist, or subversive.

Army Regulation 640-10 dated 21 April 1975 is the current regulation that prescribes standards and criteria for the disposition of military personnel in the Army when retention is not clearly consistent with the interest of national security. Persons whose conduct falls within criteria described herein are examples of individuals whose retention may not be warranted.  Such criteria includes but is not limited to advocacy of the use of force or violence to overthrow the Government of the United States or of the alteration of the form of government of the United States by unconstitutional means and participation in the activities of an organization as a front for an organization that seeks to overthrow the Government of the United States by unlawful means when his personal views were sympathetic to the subversive purpose of such organization.

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 28 December 1950, the date of his discharge or, alternatively, on 20 June 1958, the date he was furnished with a letter indicating his appointment had been terminated by operation of law.  The time for the applicant to file a request for correction of any error or injustice expired no later than 19 June 1961.

The application is dated 23 March 2001 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __aao___  __jtm___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001057680	
SUFFIX		
RECON		
DATE BOARDED	20010731	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	102.00	
2.		
3.		
4.		
5.		
6.