PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002078517


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelly		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded.

3. The applicant states, in effect, that he voluntarily admitted to being a homosexual while assigned to Fort Dix, New Jersey, and he was immediately discharged against his will. He further states that an upgrade of his discharge will allow him to be eligible for veterans benefits.

4. The applicant’s military records show that he was inducted into the Army on 28 November 1966. It also shows that the highest rank he attained while serving on active duty was private/E-1 and documents no specific acts of valor, significant achievement, or service warranting special recognition.

5. While attending basic combat training at Fort Dix, New Jersey, the applicant while being investigated by a Criminal Investigation Division agent, voluntarily provided a statement admitting that he was a homosexual.

6. On 21 March 1967, the applicant was notified by his commander that separation action was being initiated to eliminate him from the Army under the provisions of paragraph 17 (Class II), Army Regulation 635-89, by reason of homosexuality. The reason cited for the action was the applicant’s self admission that he was a homosexual and had engaged in homosexual acts during military service while on leave. The applicant acknowledged the separation action, waived the right to consulting counsel, and elected not to submit a statement in his own behalf.

7. The appropriate separation authority approved the applicant’s separation under the provisions of paragraph 17 (Class II), Army Regulation 635-89, and directed that the applicant receive an UD. On 7 April 1967, the applicant was discharged accordingly. At the time of his separation, he had only completed a total of 4 months and 10 days of active military service.

8. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

9. Army Regulation 635-89, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts. The regulation identified the specific classes of homosexuality and definitions that would be processed for separation under its provisions. In pertinent part, the regulation defined Class II cases as those in which personnel engaged in one or more homosexual acts during military service. No distinction is made in the handling of such cases based upon the active or passive participation of individuals.

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10. Paragraph 17, stated, in effect, that when an investigation indicated that the case fell into the Class II category, the individual would be processed for separation. Enlisted members whose cases were processed as a Class II category normally were provided an UD, except an honorable or general discharge could be granted if the individual was awarded a personal decoration, or if warranted based on a particular circumstances in a given case.

11. Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges. Section 4 set forth the objectives for discharge review and stated, in pertinent part, that a change in policy, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge. In addition, it indicates that a change of discharge is appropriate when there is substantial doubt the same discharge would be received if the relevant current policy had been in effect at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

12. Army Regulation 635-200 contains the regulatory policy for the separation of enlisted personnel. Chapter 3 contains guidance on the characterization of service. It states, in pertinent part, that characterization at separation will be based upon the quality of the soldier's service, including the reason for separation. Further, that the quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel. Chapter 15 prescribes the current policy and procedures for separation by reason of homosexuality.

13. Paragraph 15-4, states, in effect, that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions (UOTHC) may be issued only if there is a finding during the current term of service that the soldier attempted, solicited, or committed a homosexual act under one of the following conditions: by using force, coercion, or intimidation; with a person under 16 years of age; with a subordinate in circumstances that violate customary military superior-subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control under aggravating conditions noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft. In all other cases, the type of discharge will reflect the character of the soldier's service under the criteria outlined in chapter 3.

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14. Chapter 3, Army Regulation 625-200 identifies service characterizations and outlines the applicable circumstances that authorize each type of characterization. Paragraph 3-9 contains guidance on uncharacterized separations, and it states, in pertinent part, that a separation will be described as entry-level with service uncharacterized if processing is initiated while a soldier is in entry-level status (ELS). ELS is defined as the first 180 days of continuous active duty. The purpose of the ELS is to provide soldiers a probationary period during which they may be separated with an uncharacterized separation when they have served for less than 180 days at the time a commander initiates separation action, if they are not being separated for misconduct. This is not an adverse separation action and denotes only that the individual had less than
180 days on active duty.

CONCLUSIONS:

1. The Board notes the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors and his characterization of service was appropriate based on regulatory guidance in effect at the time. However, current regulatory guidance specifies that when the sole basis for a soldier’s separation is homosexuality, a discharge UOTHC may only be issued if the circumstances warrant it.

2. Under current regulatory standards, Regular Army soldiers separated with less than 180 days of service will be considered in an ELS, and their separation and service will be uncharacterized, unless circumstances dictate an UOTHC is warranted.

3. The evidence of record confirms that the applicant’s discharge fell into what at the time was considered a Class II category, which authorized an UD or UOTHC discharge. Under current regulatory standards, the reason for the applicant’s discharge would not warrant an UOTHC discharge. Based on the applicant’s total length of service, less than 180 days, if he were discharged for the same reason under current standards, he would receive an uncharacterized separation based on his being in an ELS.

4. In view of the facts of this case, the Board finds the applicant’s discharge is inequitable under current standards. Therefore, it concludes that it would be appropriate to correct the applicant’s record by changing the characterization of his discharge to uncharacterized.

5. The applicant is advised that granting veterans benefits is not within the purview of this Board, and any action the Board takes does not automatically entitle him to these benefits. In order to receive veterans benefits, he must apply to the appropriate administering agency.
6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated with an uncharacterized discharge on 7 April 1967, in lieu of the current UD discharge of the same date he now holds; and by providing him a corrected separation document that reflects this change.

BOARD VOTE:

__TAP__ __RWA _ __ JAK__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ Thomas A. Pagan ._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002078517
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/13
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19670407YYYYMMDD
DISCHARGE AUTHORITY	AR635-89
DISCHARGE REASON	Homosexuality
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	144.9406
2.
3.
4.
5.
6.