MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            5 June 2003                  
	DOCKET NUMBER:   AR2002079435

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Karen A. Heinz		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 he be credited with and paid for six years of service at the pay grade of E-6 and four years of service at the pay grade of E-7; and that he should be honorably discharged with 20 years of service.

APPLICANT STATES:  In effect, that he appeared before a board of field grade officers in August 1963.  He states that this board of officers was appointed by the then commanding general (CG) of Fort Gordon, Georgia, to determine his `suitability for retention in the military service.  He claims that the unanimous recommendation of this board of officers was that he be retained in military service, that he be promoted to E-6, and that he be provided a new assignment.  

EVIDENCE OF RECORD:  The applicant's military records were requested from the National Personnel Records Center; St. Louis, Missouri.  However, they were not available and were not provided to the Board.  There were sufficient documents provided in a reconstructed record that allowed the Board to conduct a fair and impartial review of this case.  

On 30 August 1963, the applicant was separated with a general, under honorable conditions discharge (GD).  At the time of his separation, he held the rank and pay grade of specialist five/E-5 (SP5/E-5), and he had completed a total of 
10 years and 23 days of active military service.  

The facts and circumstances surrounding the applicant’s discharge processing were not on file in the available documents reviewed by the Board.  However, there was a properly constituted separation document (DD Form 214) on file that was authenticated by the applicant with his signature on the date of his separation.  This document confirms that the applicant was discharged under the provisions of Army Regulation 635-89, by reason of homosexuality.  

The available documents provide no indication that the applicant was ever recommended for or promoted to a pay grade above E-5 by the proper promotion authority while he was on active duty.  Further, the available evidence does not include documents or information in regard to the applicant’s appearance before a board of officers appointed to determine his fitness for further service.  

There is no indication that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute of limitations.  

Army Regulation 635-89, in effect at the time, provided for the separation of individuals for homosexual tendencies or acts.  Class II (homosexual acts) provided for the issue of an undesirable discharge, while Class III (homosexual tendencies) provided for the issue of a GD or an honorable discharge under exceptional circumstances.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contentions that he should be credited with and paid for six years of service at the pay grade of E-6 and four years of service at the pay grade of E-7; and that he should be honorably discharged with
20 years of service.  However, it finds insufficient evidence to support granting this requested relief.  

2.  The available evidence is void of the facts and circumstances surrounding the applicant’s discharge processing.  However, it does include a properly constituted DD Form 214 that contains the authority and reason for his discharge.  This separation document identifies the reason and characterization of the applicant’s discharge, and the Board presumes government regularity in the discharge process.  

3.  In addition, the available evidence contains no indication that the applicant was ever recommended for or promoted to a pay grade above E-5 by the proper promotion authority during his active duty tenure, and the applicant has failed to provide independent evidence to the contrary.  Notwithstanding his assertion, the Board finds no evidence to show the applicant’s retention was recommended by a board of officers.  The Board notes that even if this were true, the separation authority would have still retained the authority to not accept the recommendation of the board of officers and to elect to direct the applicant’s discharge.  

4.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Thus, the Board finds no error or injustice related to the applicant’s discharge and it concludes that the requested relief is not warranted in this case. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__TBR  _KH_  __AO _  DENY APPLICATION

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

INDEX

CASE ID	AR2002079435	
SUFFIX		
RECON		
DATE BOARDED	2003/06/05	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1963/08/30	
DISCHARGE AUTHORITY	AR 635-89	
DISCHARGE REASON	Homosexuality 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  303	129.1000	
2.  283	128.0000	
3.		
4.		
5.		
6.