| Mr. Loren G. Harrell | Director | |
| Ms. Gale Thomas | Analyst |
| Mr. Thomas D. Howard | Chairperson | |
| Mr. Luther L. Santiful | Member | |
| Mr. Curtis W. Barbee | Member |
APPLICANT REQUESTS: That his records be corrected by upgrading his undesirable discharge to general, under honorable conditions. The applicant states that he was young and very immature; and that the stress and harassment he was subjected to at the age of 17 lead him to tell his commander that the was a homosexual just to get out of the Army.
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:
On 16 September 1965, he enlisted in the Regular Army for a period of 3 years.
On 9 February 1965, he was convicted by a summary court-martial for being absent without leave (AWOL) from 16 17 January 1965. He was sentenced to confinement at hard labor for one month and forfeiture.
Between 8 March 1965 and 27 June 1965, the applicant was AWOL on five separate occasions.
On 19 March 1965, an investigation by the Criminal Investigation Division (CID) was initiated as the result of the applicant’s alleged self-confessed homosexual tendencies.
On 5 April 1965, a neuropsychiatric examination diagnosed that the applicant was a sexual deviate, homosexual; and recommended that he be separated from military service under the appropriate administrative regulation.
On 18 May 1965, the CID investigation was finalized, and disclosed that the applicant by his own admission, engaged in numerous acts of mutual oral sodomy.
On 2 June 1965, the applicant’s commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-89, and that he be furnished a general discharge as a Class II Homosexual.
On 10 June 1965, the applicant acknowledged that he had been informed of his rights under the provisions of Article 31, Uniformed Code of Military Justice. He waived a hearing before a board of officers, and accepted a discharge for the good of the service. He acknowledged that he understood the effects of receiving a discharge under conditions other that honorable; he declined legal counsel and did not desire to submit statements on his own behalf.
On 23 June 1965, the appropriate separation authority approved the applicant’s separation under the provisions of Army Regulation 635-89, paragraph 6, and directed the he be furnished an undesirable discharge.
On 25 June 1965, a physical examination cleared the applicant for separation.
On 2 July 1965, the applicant was separated with an under conditions other than honorable discharge under the above cited regulation. His Report of Separation indicates he had 7 months and 13 days of creditable time and 65 days of lost time.
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 2 July 1965, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 2 July 1968.
The application is dated 28 January 1997 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
___tdh__ ____lls____ __cwb___ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
ARMY | BCMR | CY1997 | 9711464
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 states that she was raped during her military service, was not allowed an attorney, or even counseling, but sent back to her unit, which...
ARMY | BCMR | CY1997 | 9708825
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. 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...
ARMY | BCMR | CY2010 | 20100013556
On 4 May 1965, the applicant's unit commander recommended that he be discharged from military service under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuals). A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service, or if an individual had served for an extended period of time and the separation authority...
ARMY | BCMR | CY2003 | 2003083634C070212
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. 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...
ARMY | BCMR | CY2005 | 20050001819C070206
As far as he could tell the private was not a homosexual. Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed...
ARMY | BCMR | CY2005 | 20050001819C070206
As far as he could tell the private was not a homosexual. Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt,...
ARMY | BCMR | CY1997 | 9708226
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. On 6 April 1962, he submitted a second...
ARMY | BCMR | CY1995 | 9510103C070209
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 Board considered the...
ARMY | BCMR | CY1997 | 199709080
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. On 15 February 1966 the applicant was notified that his request for recall to active duty was not favorably considered because he was not qualified in one of...
ARMY | BCMR | CY2012 | 20120019701
On 20 December 1963, the applicant was discharged under the provisions of Army Regulation 635-89, for homosexuality, Class II (separation program number 257) and issued an Undesirable Discharge Certificate. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction...