MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 December 2002
         DOCKET NUMBER: AR2002074586

         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. Roger W. Able		Chairperson
Ms. Karen Y. Fletcher		Member
Mr. Bernard P. Ingold		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 the rules have changed since his discharge and he would like to receive an honorable discharge so he can obtain veterans benefits. He goes on to state that he is 69 years of age, retired, has been married for 36 years and has four children and none of them know of his discharge.

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

He was inducted in Kansas City, Missouri, on 10 April 1953 and remained on active duty as a motor sergeant through a series of continuous reenlistments. He was promoted to the rank of staff sergeant on 23 September 1958.

On 5 November 1960, he was transferred to Korea for duty as a company training noncommissioned officer (NCO).

On 13 October 1961, a military police (MP) investigation was initiated upon receipt of information that the applicant and another soldier may possess homosexual tendencies. The investigation disclosed that subsequent to the applicant’s present assignment, he had engaged in acts of sexual perversion involving oral copulation with at least three other soldiers. In all incidents, the applicant admitted to being the active partner and indicated the incidents occurred in the unit latrine, wash room, mess hall and adjacent Korean villages.

The applicant was advised of his rights on 17 October 1961 and informed that he was being investigated for homosexuality. He waived his rights and issued a sworn statement to the effect that while stationed in Germany he met another soldier who introduced him to homosexual acts. He continued after he returned to Fort Riley, Kansas, and engaged in numerous sexual acts involving oral copulation with people (mostly soldiers) in neighboring towns and cities. He went on to state that he continued when he arrived in Korea and was the active partner in each instance. He also named others who were engaged in the mutual acts and stated that he never performed the acts when he was sober. He also stated he would cooperate in any manner to get assistance for the problem he had developed and that he had feared that he would be discovered sooner or later.

Other individuals named by the applicant were interviewed and confirmed the sexual acts and their participation with the applicant in the form of sworn statements.

The applicant underwent a psychiatric examination on 18 October 1961 and was diagnosed as a sexual deviate. The division psychiatrist opined that he was mentally responsible, able to distinguish right from wrong and to adhere to the right. He opined that his condition was not amenable to medical or psychiatric treatment in a military setting and recommended that the applicant be separated under the provisions of Army Regulation 635-89.

On 23 October 1961, the applicant submitted a statement in which he indicated that he would accept an undesirable discharge for the good of the service in order to escape a trial by court-martial. He further stated that he understood that his separation from the service by an undesirable discharge would be under other than honorable conditions and that he may be deprived of many rights as a veteran under both Federal and State legislation and that he could expect to encounter substantial prejudice in civilian life as a result of his discharge.

The applicant’s commander submitted a request to discharge the applicant under the provisions of Army Regulation 635-89 on 23 October 1961. He cited as the basis for his recommendation, the MP investigation results and the applicant’s request for discharge.

The applicant waived his right to appear before a board of officers and elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the request for discharge on 13 November 1961 and directed that he be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was returned to Oakland Army Base, California, where he was discharged under other than honorable conditions on 5 December 1961, under the provisions of Army Regulation 638-89, due to acceptance of discharge as a Class II homosexual. He had served 8 years, 7 months and 26 days of total active service. His awards included the Good Conduct Medal and the Expert Marksmanship Bade with rifle bar.

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 within that board’s 15-year statute of limitations.

Army Regulation 635-89, in effect at the time, set forth the basis authority for the separation of homosexuals. It stated, in pertinent part, that personnel would be discharged under other than honorable conditions if the case falls within Class II. Class II consisted of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

Army Regulation 635-200, chapter 15, currently in effect, provides, in pertinent 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 in a location subject to military control.

Army Regulation 635-200, chapter 10, currently in effect, provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial provides the maximum sentences that may be imposed if convicted at trial by court-martial. It provides, in pertinent part, that the maximum sentence that may be imposed for a conviction by a court-martial, for a single violation of Article 125 (Sodomy), is a dishonorable discharge, confinement at hard labor for 5 years, and a total forfeiture of all pay and allowances.

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 applicant’s administrative separation was administratively correct and in conformance with applicable regulations, with no indication of any violations of the applicant’s rights.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. He voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believes that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of his offense, his rank at the time and his overall record of undistinguished service.

4. The Board has noted the applicant’s contention that the rules have changed since his discharge and finds it to be without merit. While the rules have changed in regards to persons having homosexual acts with others in area not under military jurisdiction, a discharge under other than honorable conditions is still deemed appropriate when the acts are committed in areas under military jurisdiction. Therefore, the characterization of the applicant’s discharge would be the same today.

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

___bpi __ __kf ____ ___rwa __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074586
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/12
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1961/12/05
DISCHARGE AUTHORITY	AR635-89
DISCHARGE REASON	HOMO
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 563	144.4600/A46.00
2.
3.
4.
5.
6.