MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 October 2002
         DOCKET NUMBER: AR2002075890

         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. Raymond V. O’Connor, Jr.		Chairperson
Ms. Karen A. Heinz		Member
Ms. Barbara J. Ellis		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 general discharge be upgraded to honorable.

APPLICANT STATES: That his discharge should be changed to honorable because people who are like he thought he was are in the service now and his life-style has changed since his discharge. He goes on to state that he has been married, had two kids, was divorced and is now remarried. He further states that his sexual status has changed and since bi-sexual people are now allowed in the service, he should receive an honorable discharge.

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

He enlisted on 23 January 1979, for a period of 3 years, training as an infantryman and assignment to Fort Hood, Texas. At the time of his enlistment he indicated that he had never had homosexual acts with a person of the same sex.

He completed his training at Fort Benning, Georgia, and was transferred to Fort Hood on 8 May 1979.

On 9 July 1979, nonjudicial punishment was imposed against him by his battalion commander for being absent without leave from 22 June to 1 July 1979 and for disobeying two lawful orders from his company commander. His punishment consisted of correctional custody for 30 days and a forfeiture of pay (suspended for 2 months). He appealed his punishment and his appeal was denied by the brigade commander on 25 July 1979.

On 10 July 1979, the applicant made a sworn statement to his battalion commander stating that he had been a homosexual for about 2 ½ years and he had no desire to change or start a new way of life. He also stated that he saw no mental or physical harm in his choice of life and that his choice was better suited to him than the way chosen by others.

On 16 July 1979, the assistant brigade chaplain authored a letter to the applicant’s commander indicating that he had been counseling the applicant since 2 July 1979, and that the applicant had gone AWOL because he was experiencing difficulty adjusting to military life. He went on to state that the applicant was struggling with his homosexual tendencies and was afraid that it would become known that he was a homosexual. He went on to state that the applicant was struggling with his desire to perform homosexual acts while in the Army and was trying to control his urges. The applicant was afraid bodily harm would come to him if it were known and the chaplain asserted that he believed it to be a valid fear. The applicant also admitted that he had been a homosexual for over 2 years and the chaplain opined that he should be discharged immediately.

On 16 August 1979, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability because of homosexuality. He cited as the basis for his recommendation, the applicant’s admission of homosexuality to himself, the battalion commander and the chaplain. He further stated that the applicant’s statement that barracks living will eventually cause him to commit overt acts and he desired to leave the Army to pursue a homosexual lifestyle appeared to be genuine. He opined that the applicant’s conduct was disruptive to discipline and could be hazardous to all concerned.

After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

On 27 and 30 July 1979, the applicant underwent a psychiatric evaluation based on a request from his commander. The examining psychiatrist opined that there was no evidence of any mental disease or defect and that there was no psychiatric diagnoses appropriate at the time. He indicated that the applicant had admitted to homosexual acts prior to military service and denied any acts during military service. However, he admits to homosexual tendencies.

On 24 August 1979, after interviewing the applicant, the brigade commander approved the recommendation for discharge based on his interview and the chaplain’s statement and directed that he be furnished a general discharge.

Accordingly, he was discharged under honorable conditions on 17 September 1979, under the provisions of Army Regulation 635-200, paragraph 13-4d, for unsuitability due to homosexual tendencies. He had served 7 months and 16 days of total active service and had 9 days of lost time due to AWOL. At the time of his discharge he was advised of the procedures for applying for an upgrade of his discharge to the Army Discharge Review Board and was provided the necessary form to do so.

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 635-200, chapter 13, in effect at the time, provided, 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. The regulation currently in effect (Army Regulation 635-200, chapter 15), has the same provisions.

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 applicant’s contentions have been noted by the Board and appear to be without merit. Under today’s standards, individuals in the same situation would be treated much the same as the applicant, depending on the individual circumstances. Likewise, the character of their discharge would reflect their overall record of service. In the applicant’s case, he went AWOL for 9 days and only served 7 months. Accordingly, his discharge was not then and is not now deemed fully honorable.

4. Although the applicant may have changed his lifestyle since his discharge, this in itself is not sufficiently mitigating to warrant an upgrade of a duly constituted discharge that properly reflects the characterization of his service during the period in question.

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
__be____ ___kh___ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075890
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1979/09/17
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	HOMOSEXUALITY
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 563	144.4600/A46.00
2.
3.
4.
5.
6.