| Mr. Carl W. S. Chun | Director | |
| Mr. Robert J. McGowan | Analyst |
| Mr. John N. Slone | Chairperson | |
| Ms. Linda D. Simmons | Member | |
| Ms. Regan K. Smith | Member |
APPLICANT REQUESTS: In effect, that his GD (general discharge) by reason of chapter 15, Army Regulation 635-200, homosexuality, be upgraded to an HD (honorable discharge) and that the separation authority and narrative reason for separation be changed.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He was separated from the Regular Army as a Sergeant First Class (SFC) on 10 February 1984 after serving 17 years, 9 months, and 5 days of creditable active Federal service. He received a GD; the separation authority was chapter 15, paragraph 15-3a, Army Regulation (AR) 635-200; and the narrative reason for separation was "engaged, attempted to engage in, or solicited another to engage in homosexual act(s)."
In 1983, the applicant was an instructor at the US Army Quartermaster School, Fort Lee, Virginia. In July 1983, three male soldiers-in-training came to their company First Sergeant and wrote statements that the applicant had attempted to engage them in homosexual acts. The statements were processed and turned over to the Criminal Investigation Division (CID). On 9 August 1983, the CID completed its investigation and determined that no criminal activity had occurred.
The CID investigation into the 1983 allegations uncovered additional information pertaining to the applicant's homosexual activities. On 22 April 1975, he was titled in a CID Report of Investigation (ROI) for committing indecent or lewd acts with another male soldier, and sodomy. Also, on 26 November 1979, he was given a General Officer administrative letter of reprimand (GOLOR) for twice taking male soldiers-in-training to his off-post quarters and soliciting acts of oral sodomy.
On 2 November 1983, the applicant was notified by his company commander that he was being recommended for separation under the provisions of paragraph 15-3a, AR 635-200 for homosexuality. The above three incidents were cited as the reason for the proposed action. The applicant acknowledged notification, requested legal counsel, and requested a hearing before a board of officers.
On 9 January 1984, a board of officers convened to hear testimony and review evidence to determine whether the applicant should be separated for homosexuality. The board concluded that the applicant was undesirable for further retention because of his frequent acts of solicitation to commit homosexual acts, and that his rehabilitation was not possible. The board recommended that he be discharged from the Army because of homosexuality with issuance of a GD.
On 10 February 1984, the applicant was separated with a GD under the provisions of chapter 15, paragraph 15-3a, AR 635-200, for homosexual acts. He had 1 year, 7 months, and 2 days of creditable service on his current period of service, and a total of 17 years, 9 months, and 5 days of creditable service.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 February 1984, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 10 February 1987.
The application is dated 23 November 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
Prior to reaching this determination, the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__jns___ __lds___ __rks___ CONCUR WITH DETERMINATION
| CASE ID | AR2003083634 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030925 |
| TYPE OF DISCHARGE | GD |
| DATE OF DISCHARGE | 19840210 |
| DISCHARGE AUTHORITY | AR 635-200 C15 |
| DISCHARGE REASON | A46.00 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110.0200 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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