2.  In effect, the applicant requests that his general discharge for homosexuality in 1987 be voided, that he be reinstated in the Army, and granted all rights and privileges therefrom.   

3.  He states that his discharge was erroneous in that he was denied an administrative discharge board hearing.

4.  The applicant’s counsel submits a brief (COPY ATTACHED), in which counsel also states that the applicant’s discharge was erroneous and unjust in that he was denied the right to an administrative discharge board hearing as required by regulations.  Counsel states that the applicant was deprived of fundamental due process in his discharge proceedings, that he was given inadequate notice of the basis for discharge, in violation of regulation and his right to due process, that the applicant’s statement and evidence were not considered by the separation authority, and that the case against the applicant was tainted by bias against HIV-positive soldiers within his command.

5.  The applicant enlisted in the Army on 9 November 1981, completed training as a military policeman, and was assigned to units at Fort Stewart, Georgia, Fort Hamilton, New York, Fort Dix, New Jersey, and in Germany.  He was promoted to pay grade E-5 effective 1 August 1985.  On 23 September 1985 he reenlisted for three years and in November of that year was assigned to Fort Carson, Colorado.

6.  A 5 September 1986 clinical resume prepared by a physician at Fitzsimons Army Medical Center indicates that the applicant had been initially identified as HTLV-III positive in February 1986.  His condition was diagnosed as human immunodeficiency Walter Reed stage 2 and he was awarded a temporary profile which prohibited his assignment outside the United States, and indicated that he was to have no live virus vaccines for one year.  That same diagnosis and profile are shown in a 20 March 1987 clinical resume.  


7.  A 15 April 1987 psychiatric report indicates that the applicant denied that he was a homosexual.  That official stated that the applicant had a vulnerability in all interpersonal relationships that might lead him to overvalue and somewhat misunderstand the nature of the relationship, and that excessive alcohol consumption had played an important role in instances of questionable judgment.  He stated that the applicant was cleared psychiatrically for action as deemed appropriate.

8.  On 21 April 1987 the applicant’s commanding officer initiated action to eliminate the applicant from the Army for homosexuality under the provisions of Army Regulation 635-200, chapter 15.  He informed the applicant that he could have his case considered by a board of officers only if he had completed six years of service or if his discharge would be under other than honorable conditions.  He also informed the applicant of his right to consult with counsel, to submit statements in his own behalf, and to review documents to be presented to the separation authority supporting the proposed elimination.  The applicant’s commanding officer stated that the reason for his action was that the applicant had engaged in homosexual acts.  That official stated that he was recommending that the applicant receive a general discharge.

9.  On that same day the applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, and of the rights available to him.  The applicant requested a personal appearance and consideration of his case by a board of officers and indicated that statements in his own behalf would be submitted.  The applicant stated that he understood the nature and consequences of the general or other than honorable discharge that he might receive.  There is no indication that the applicant was afforded the opportunity to review the documents to be presented to the separation authority supporting the proposed elimination. 


10.  Again on 21 April 1987, the applicant’s commanding officer recommended that the applicant be separated for homosexuality under the provisions of Army Regulation 
635-200, chapter 15.  That official stated that the applicant had engaged in homosexual acts.  Listed as enclosures to his recommendation were the notification and receipt of that notification by the applicant, statements from two soldiers, a copy of a CID (Criminal Investigation Division) report, and a report of mental status evaluation.

11.  The statement from one soldier, a military police lieutenant, indicates that the applicant informed him that he was a homosexual.  The statement from the other soldier, also indicates that the applicant informed him that he was a homosexual and had committed a homosexual act with him.  The CID report indicates that another soldier had stated that he and the applicant had engaged in homosexual acts.  That report indicates that the applicant denied any involvement with that soldier.

12.  The applicant submitted a statement outlining his involvement with the two soldiers who had accused him of homosexual acts, stating that he was not a homosexual nor had he engaged in homosexual acts.

13.  The applicant submitted statements from 14 individuals, all of which appear to have been made after the 21st of April, from among others, an Army chaplain, a clinical consultant, a behavioral science specialist, a registered nurse health care provider involved with the applicant’s support group for HIV positive soldiers, and his former room mate.  These individuals attest to the applicant’s good character, and indicated that they did not believe that the applicant was a homosexual.  

14.  On 5 May 1987 an assistant Staff Judge Advocate stated that the separation proceedings were legally sufficient.  The separation authority approved the recommendation and directed that the applicant be issued a general discharge certificate.  The instrument of approval indicates that  only those documents forwarded by the applicant’s commanding officer in his original recommendation to the separation authority were included with the separation proceedings.  There is no indication that the applicant’s statement or statements in his behalf were considered by the separation authority. 

15.  On 14 May 1987 the applicant was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 15-3.  The narrative reason for his discharge is indicated as, admission of homosexuality.  He had 5 years, 6 months, and 6 days of service.  During his brief military career the applicant was awarded the Army Good Conduct Medal, the Army Achievement Medal with oak leaf cluster, and the Army Commendation Medal, among others.  Additionally, his record shows numerous certificates and letters of appreciation and commendation.

16.  A 9 May 1995 VA medical report shows that the applicant had developed AIDS 2 years prior to that date.  A 
21 February 1995 VA rating decision awarded the applicant a 60 percent service connected disability for HIV infection (AIDS).

17.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation provides the policy and procedures for separation for homosexuality.  Paragraph 15-3 states that a soldier will be separated for homosexuality if the soldier has engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there are approved findings that such conduct is a departure from the soldier’s usual and customary behavior; and such conduct is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service; and such conduct was not accomplished by use of force, coercion, or intimidation by the soldier during a period of military service; and under the particular circumstances of the case, the soldier’s continued presence in the Army is consistent with the interest of the Army in proper discipline, good order, and morale; and the soldier does not desire to engage in or intend to engage in homosexual acts.  The soldier will be separated if he has stated that he is a homosexual or bisexual, unless there is a further finding that the soldier is not a homosexual or bisexual.  The soldier will be separated if he has married or attempted to marry a person known to be of the same biological sex.

18.  Paragraph 15-4 provides, in part, that when the sole basis for separation is homosexuality, the type of discharge will reflect the character of the soldier’s service.  A discharge under other than honorable conditions may be issued only if there is a finding that during the current term of service the soldier attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation; with a person under 16 years of age; with a subordinate in circumstances that violate customary military superior-subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or, in another location subject to military control.

19.  Chapter 15 also states, in pertinent part, that if the immediate commander determines that probable cause for separation exists, he will report the fact through intermediate commanders to the separation authority.  He will give the reason for the action recommended (general, nondescriptive terms will not be used), include a statement by the soldier indicating that he has been advised of his rights, and will take action as specified in chapter 2, section III of the cited regulation. 

20.  Chapter 2, section III pertains to administrative board procedure and states in pertinent part, that the commander will cite the specific allegation on which the proposed action is based, and that the soldier will be advised of his right to obtain copies of documents that will be sent to the separation authority supporting the proposed separation.

21.  Paragraph 15-8 of the aforementioned regulation states, in part, that on receiving a recommendation for separation of homosexuality, the separation authority may disapprove the recommendation or convene a board of officers as prescribed in chapter 2, section III.  The board will determine whether the soldier should be separated for homosexuality.  If the board hearing has been properly and effectively waived, the separation authority will either direct retention or separation.

22.  Paragraph 15-9 states that if the board finds that one or more of the circumstances authorizing separation under paragraph 15-3 is supported by the evidence, the board will recommend separation unless the board finds that retention is warranted under the limited circumstances described in paragraph 15-3.  The burden of proving that retention is required under the limited circumstances rests with the soldier.  Findings regarding the existence of the limited circumstances warranting a soldier’s retention are required only if the soldier clearly and specifically raises such limited circumstances; or the board or discharge authority relies upon such circumstances to justify the soldier’s retention.

CONCLUSIONS:

1.  The applicant’s separation proceedings were not conducted in accordance with the applicable regulation.  

     a.  The applicant was notified by his commanding officer that he was being eliminated because of his engagement in homosexual acts.  This reason is not in keeping with the intent of the governing regulation requiring that the commander cite the specific allegation on which the proposed action is based.  Further, the Board notes that the reasons for the applicant’s discharge as indicated on his separation document is admission of homosexuality.

     b.  There is no indication that the applicant had the opportunity to review the documents submitted to the separation authority that supported the proposed elimination.  The notification to the applicant of the proposed elimination action, his acknowledgment of receipt of the action and of the rights available to him, and the commanding officer’s recommendation to the separation authority, were all accomplished on the same day.  The applicant had no opportunity to review the documents or to submit statements in his own behalf. 

     c.  The evidence indicates that the statements eventually submitted by the applicant were not considered, or even seen by the separation authority.  The separation authority, thusly, did not have all available information pertinent to the case, which if available, may have altered his decision to separate the applicant or may have caused the separation authority to modify the applicant’s characterization of service. 

     d.  The applicant did not have the opportunity for an administrative board hearing as specifically required for all separation proceedings for homosexuality, unless properly and effectively waived by the applicant.  The applicant, in fact, requested personal appearance and consideration of this case by a board of officers.

2.  This Board cannot postulate as to the findings and recommendations of an administrative board had one been convened to determine if the applicant should have been separated for homosexuality, nor the decision of the separation authority, nor the characterization of discharge if separation was approved.

3.  The applicant’s discharge for homosexuality was erroneous, improper, and unjust, and should be voided.  

4.  The applicant’s record should be corrected to show that he served on active duty continuously from the date of his reenlistment on 23 September 1985 until his discharge on the normal expiration of his term of service (ETS) on 
22 September 1988.  The character of the applicant’s service should be honorable, and he should be issued an Honorable Discharge Certificate. The applicant is entitled to pay and allowances from 15 May 1987 through 22 September 1988.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

     a.  By voiding the applicant’s 14 May 1987 discharge for homosexuality, and

     b.  by issuing a new DD Form 214 showing that he served on active duty continuously until his discharge on his ETS on 22 September 1988 and by showing that the character of his discharge was honorable, and

     c.  by issuing the applicant an Honorable Discharge Certificate, and

     d.  by awarding the applicant all pay and allowances due from 15 May 1987 through 22 September 1988.             

2.  That so much of the application as in excess of the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON