MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002071682

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable.

APPLICANT STATES: That he was discharged solely because he is a homosexual and not because of infractions of military law.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in Manchester, New Hampshire, on 17 October 1963 for a period of 3 years and training as an information specialist. He completed his basic combat training at Fort Dix, New Jersey, and was transferred to Fort Slocum, New York, to attend his advanced individual training (AIT) as an information specialist. It appears that he did not complete the course because he was transferred back to Fort Dix to attend AIT as a light vehicle driver. He completed that AIT and was transferred to Hawaii on 20 May 1964, for duty as a light vehicle driver. He was advanced to the pay grade of E-3 on 17 June 1964.

On 12 September 1964, upon advice from a chaplain, the applicant self-referred himself for a psychiatric evaluation and admitted that he was a homosexual. He was informed of his rights under Article 31 of the Uniform Code of Military Justice. He explained that his homosexual activity began in his early teens and that he had, within the last 18 months, reconciled himself to the fact that he should plan on living that way. He stated that he did not check homosexual tendencies on the Standard Form 99 at the time of enlistment because he wanted to try and play the game. He alluded to the fact that he had had homosexual tendencies with other servicemen and that he was admitting his homosexual tendencies because the Army was pressuring him to quit a job he obtained in downtown Honolulu as a disc jockey that was more important to him than the Army. He also indicated that if he remained in the service he may become involved with someone in the barracks and may be prosecuted more severely by the Army. The psychiatrist indicated that he was familiar with all of the homosexual jargon and diagnosed him as having sexual deviancy – homosexuality. He recommended that the applicant be discharged under the provisions of Army Regulation 635-89.

On 23 September 1964, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-89 for homosexuality. He indicated that the applicant’s conduct and efficiency had been unsatisfactory and that he had previously relieved the applicant from his job because of his failure to respond to numerous counseling sessions by the first sergeant, due to his frequent outburst of temper, which resulted in his talking back to noncommissioned officers, his lack of initiative, his failure to finish any job he started, his poor appearance, and his undisciplined conduct. The commander also opined that the applicant had been unable to stay awake during duty hours because he had a night job as a disc jockey in Honolulu from 2100 to 2400 hours and believed that the applicant was creating the story of being a homosexual for the purpose of getting out of the Army before he was made to quit his job.

After being advised of his rights, the applicant waived his rights and indicated that he would accept a discharge for the good of the service. He also indicated that he understood that his separation from the Army may be effected by a discharge under other than honorable conditions, that he may be deprived of many rights and benefits as a veteran and that he could expect to encounter substantial prejudice in civilian life as a result of such a discharge. He also submitted a statement in his own behalf whereas he admitted that he had been a homosexual since age 14, that he had homosexual activities 10 or 12 times since entering the Army, but never on an Army installation and that he felt it was only a matter of time before he did. Therefore, he wished to avoid the punitive action that would occur in the event it happened on base.

The appropriate authority (a brigadier general) approved the recommendation for discharge as a Class II homosexual on 14 October 1964 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged on 21 October 1964, under other than honorable conditions, under the provisions of Army Regulation 635-89, as a Class II homosexual. He had served 1 year and 5 days of total active service of which 5 months and 2 days were spent in Hawaii.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge during that board’s 15-year statute of limitations.

Army Regulation 635-89, in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. It provided, in pertinent part, that an honorable or general discharge could be issued under exceptional circumstances but that in most cases an undesirable discharge would be issued. Homosexual acts were punishable by court-martial and in each case the major commander was responsible for determining whether the best interests of the service would be served by punitive or administrative measures. Commanders had discretion on the discharge to be issued to Class II homosexuals; however, all individuals who were deemed Class I homosexuals were not authorized to receive a general or honorable discharge.

Army Regulation 635-200, currently in effect, provides the policies and procedures for the separation of enlisted personnel. Chapter 15 of that regulation provides, in pertinent part, that a discharge under other than honorable conditions will 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 (1) using force, coercion or intimidation, (2) with a person under 16 years of age, (3) with a subordinate in circumstances that violate customary military-subordinate relationships, (4) openly in public view, (5) for compensation, (6) aboard a military vessel or aircraft or (7) in another location subject to military control. This was defined as Class I under Army Regulation 635-89.

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. Inasmuch as the applicant was discharged based on his admission of homosexuality and admitted to performing such acts with military personnel, the Board finds that he was properly discharged in accordance with the applicable regulations in effect at the time and that he was issued the proper discharge.

2. Although the applicant claimed that he had not performed the acts on a military installation and there was no evidence to suggest that he had at the time, the applicant’s chain of command had the discretion to grant him a general or honorable discharge, based on his performance at the time. It is apparent that the applicant was not a model soldier in terms of conduct and efficiency and given his admission that he was not truthful at the time of his enlistment, the Board finds no basis to upgrade his discharge.

3. The Board has noted the applicant’s contention that his discharge was not based on a violation of military law and finds it to be without merit. Not only is homosexual activity a violation of military law, falsifications of enlistment documents constitutes fraudulent enlistment and is also a violation of military law. Accordingly, the Board finds that his service does not constitute honorable service or service under honorable conditions.

4. 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.

5. 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

___tsk __ __lem ___ ___fe___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071682
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1964/10/21
DISCHARGE AUTHORITY	AR635-89
DISCHARGE REASON	HOMOSEXUAL CLASS II
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 563	144.6000/a46.00
2.
3.
4.
5.
6.