MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002074718

         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		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 during an inspection, blood was found on his unwashed clothes in his locker that came from a scratch on his leg and got blood on his shorts. He goes on to state that he was confined to a room for a week and was discharged. He further states that he was never told why he was being discharged nor was he charged with anything. He also states that he does not know why he was discharged and has never paid any attention to his discharge; however, he now needs medical treatment from the Department of Veterans Affairs (VA). In support of his application he submits a police record, a letter from an employer and an unofficial statement of his position in his church.

EVIDENCE OF RECORD: The applicant's military records, though partially destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri, show:

He enlisted at Fort Jackson, South Carolina, on 7 March 1956, for a period of 3 years and training as a military policeman (MP). He completed his basic combat training at Fort Jackson and was transferred to Fort Gordon, Georgia, to undergo his advanced individual training (AIT) as a MP. He completed his AIT and was transferred to Italy aboard the Unites States Navy Ship (U.S.N.S.) Johnson on 18 August 1956.

On 6 October 1956, the applicant was advised of his rights by a military police investigator in connection with an investigation of sodomy. The applicant waived his rights and issued a sworn statement in which he admitted to having participated in three acts of sodomy with military personnel and two acts with Italian civilians.

On 8 October 1956, another soldier with whom the applicant had named as a participant in one of the acts of sodomy, waived his rights and made a sworn statement to the effect that he also had committed several acts of sodomy and one of them was with the applicant.

On 10 October 1956, charges were preferred against the applicant for committing an act of sodomy with another soldier aboard the U.S.N.S. Johnson on 5 September 1956.

The applicant underwent a medical evaluation on 12 October 1956 and was diagnosed as a sexual deviate. The examining physician determined that he understood the difference between right from wrong and could adhere to the right. He recommended that the applicant be separated as unfit or inadequate for military service.

On 12 October 1956, 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.

On 17 October 1956, the applicant’s commander submitted a request to discharge the applicant under the provisions of Army Regulation 635-89. He cited as the basis for his recommendation that the applicant had displayed an irresponsible attitude towards his duties as an MP, that even after adequate and proper orientation, he did not display the knowledge normally expected of an MP, and that he did not display the military bearing or appearance of an MP. He enclosed the medical evaluation, the sworn statements and the applicant’s request for discharge and opined that the applicant should be discharged as a Class II homosexual.

The appropriate authority approved the request for discharge on 30 October 1956 and directed that he be furnished an Undesirable Discharge.

Accordingly, the applicant was returned to Fort Dix, New Jersey, where he was discharged under other than honorable conditions on 27 November 1969, under the provisions of Army Regulation 635-205 and Army Regulation 638-89, due to acceptance of discharge as a Class II homosexual. He had served 8 months and 21 days of total active service.

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. The Board has noted the applicant’s contentions that he did not know why he was being discharged and finds them to be without merit. He clearly admitted to the MP investigator that he participated in at least five acts of sodomy and when he was charged with one offense, he requested discharge in lieu of trial by court-martial. The evidence of record leaves no doubt as to the applicant’s knowledge of why he was being discharged.

4. The Board has also noted the supporting documents submitted by the applicant with his application and finds that they are not sufficiently mitigating to warrant relief given the available facts of the 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

___tsk___ __cvm __ ___cla __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074718
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1956/11/27
DISCHARGE AUTHORITY	AR635-89
DISCHARGE REASON	Homo
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 563	144.4600/a46.00
2.
3.
4.
5.
6.