RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004101801


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her 1983 discharge be voided
and that she be reinstated to active duty.

2.  The applicant states, in effect, that her discharge is unconstitutional
and has been declared as such by the United States Supreme Court.  She
states that less than 13 months after being discharged she re-married her
former husband and has lived in a heterosexual relationship ever since.

3.  She states that she lost custody of her child because a county sheriff,
who was a former military member, told the Department of Children and
Family Services that her discharge had been altered and that Soldiers
discharged for the same reason as she was always received a dishonorable
discharge.  She notes that she was denied a Department of Veterans Affairs
(VA) loan because a service representative at the VA housing office told
her that she was not married and that her discharge had been altered.

4.  The applicant also states that on two separate occasions she has
attempted to reenlist.  During the Gulf War she was told by recruiters to
take her discharge home and burn it and forget that she ever served in the
military and following September 11, 2001 she was told she was too old.

5.  She states that she has been unable to get a job as an aide in a school
because an individual stated that she “can prove that [the applicant] was
dishonorably discharged for homosexual contact with minors.”

6.  The applicant provides no evidence in support of her request, beyond
her self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 February 1983.  The application submitted in this case
is dated
7 October 2003.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 25 February 1977.  At the time of her enlistment, her
records indicated that she was married.

4.  The applicant was trained as a Radio Tele-type Operator and in August
1977 was assigned to a signal battalion in Germany.  In April 1978 she
requested that her last name be changed because of divorce.  In 1979 she
was discharged for the purpose of immediate reenlistment and in July 1982
she was promoted to pay grade E-5.  Her records indicate that she was
awarded an Army Good Conduct Medal and an Army Achievement Medal.
Performance evaluation reports indicate that she was performing her
military duties in a satisfactory manner.

5.  In November 1982 the applicant was notified by her commanding officer
that he was initiating action to administratively discharge her for
homosexuality under the provisions of Army Regulation 635-200, paragraph 15-
3.  He specifically cited “a sworn statement admitting that you [the
applicant] have engaged in homosexual activities” as the basis for his
recommendation.

6.  The applicant acknowledged receipt of the proposed separation action,
consulted with counsel and requested that a board of officers hear her
case.

7.  On 17 December 1982 the applicant appeared, with counsel, before a
board of officers at Storck Barracks in Illesheim, Germany.  In a summary
of the board’s proceedings, it indicated that the applicant stated that she
was not a homosexual but that she had engaged in homosexual acts on “two
nights in succession, after drinking heavy” in May 1981.  The incidents
were with the same woman and occurred in military billeting.  She related
that she told her commander about the incidents because she worked with his
wife and knew “how rumors on this post start.”

8.  During cross examination she stated that she was aware of the “gay
community” on post but that she was not involved in the community.  She
related that the last time she was at a “gay club was in August” and that
“these homosexual tendencies stopped around March of 1982.”




9.  The board of officers concluded that the applicant did “perform
homosexual acts” but that:

      a.  these acts were a departure from her normal activities.


      b.  homosexual acts are likely to reoccur - although alcohol could be
considered a factor initially; peer pressure and pressure from associates
seems to be more responsible for the second act and subsequent associations
– this is not to be confused with coercion.


      c.  she was not guilty of using any force, coercion or intimidation to
other member.


      d.  her continued presence is not consistent with proper discipline,
good order, and morale of the United States Army.  Failure to properly
disassociate and continued to associate.


      e.  she does not want to engage in homosexual acts.

10.  The board recommended that the applicant be discharged from the
service.  However, “based on her good service and willingness to seek
help,” they recommended that she “be issued an honorable discharge
certificate.”

11.  The findings and recommendation of the board was approved and on
8 February 1983 the applicant was honorably discharged.  She had nearly 6
years of service at the time of her discharge.

12.  Army Regulation 635-200, then in effect, established the policies and
provisions for the administrative separation of enlisted Soldiers.  Chapter
15 of the regulation noted that homosexuality was incompatible with
military service and that the basis for separation may include preservice,
prior service, or current service conduct or statements.  It stated that a
Soldier would be separated if “the member has engaged in, attempted to
engage in, or solicited another to engage in a homosexual act unless there
are approved findings that:”

      a.  such conduct was a departure from the member’s usual and
customary behavior.

      b.  such conduct is unlikely to recur because it is shown, for
example that the act occurred because of immaturity, intoxication,
coercion, or a desire to avoid military service.

      c.  such conduct was not accomplished by use of force, coercion, or
intimidation by the member during a period of military service.

      d.  under the particular circumstances of the case, the member’s
continued presence in the Service is consistent with, the interest of the
service in proper discipline, good order, and morale.

      e.  the member does not desire to engage in or intend to engage in
homosexual acts.

13.  The regulation noted that to warrant retention of a member the board’s
findings must “specifically include all five findings” listed above.  It
noted that when the sole basis for separation is homosexuality, a discharge
under other than honorable conditions may be issued only if such
characterization is warranted and if there is a finding that during the
current term of service the member attempted, solicited, or committed a
homosexual act:

      a.  by force, coercion, or intimidation.

      b.  with a person under 16 years of age.

      c.  with a subordinate in circumstances that violate customary
military superior-subordinate relationships.

      d.  openly in public view.

      e.  for compensation.

      f.  aboard a military vessel or aircraft.

      g.  in another location subject to military control if the conduct,
had, or was likely to have had, an adverse impact on discipline, good
order, or morale due to the close proximity of other members of the Army
Forces.

In all other cased the type of discharge will reflect the character of the
member’s service.

14.  Army Regulation 635-200, then and now, states that dishonorable
discharges may only be given as a result of a sentence by a general court-
martial.

15.  Army Regulation 635-200, currently in effect, contains essentially the
identical provisions for separation of Soldiers for homosexual conduct as
contained in the regulation in existence at the time of the applicant’s
separation, including the characterization of one’s service.  The basis for
separation of Soldiers based on homosexual conduct is defined by Title 10,
United States Code, Section 654 and in Section 8, Article I of the
Constitution of the United States.

16.  Title 10, United States Code, Section 654, states that the prohibition
against homosexual conduct is a longstanding element of military law that
continues to be necessary in the unique circumstance of military service.
There is no constitutional right to serve in the armed forces.

17.  Section 8 of Article I of the Constitution of the United States
commits exclusively to the Congress the powers to raise and support armies,
provide and maintain a Navy, and make rules for the government and
regulation of the land and naval forces.  Pursuant to the powers conferred
by Section 8 of Article I of the Constitution, it lies within the
discretion of the Congress to establish qualifications for and the
conditions of service in the armed forces.

18.  Army Regulation 600-20 (Army Command Policy) states that a person’s
sexual orientation is considered a personal and private matter and is not a
bar to entry or continued service unless manifested by homosexual conduct.
It also notes, in pertinent part, that homosexual conduct is grounds for
separation from the Army under the terms set forth in Army Regulation 635-
200 for enlisted Soldiers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant admitted to homosexual conduct and a board of officers
determined that the applicant’s homosexual acts were likely to reoccur and
that her continued presence was not consistent with proper discipline, good
order and morale of the United States Army.  Her discharge was appropriate,
conducted in accordance with applicable laws and regulation with no
indication that her rights were jeopardized in any way.

2.  The applicant’s argument that her discharge was unconstitutional is
without foundation.  The Supreme Court has not ruled that separation for
service members for homosexual conduct is unconstitutional.

3.  Title 10, United States Code, Section 654, provides for the separation
of Soldiers who engage in homosexual conduct.  The basis for that
separation was outlined in Army Regulation 635-200 at the time of the
applicant’s 1983 separation and is currently in effect.

4.  Contrary to the applicant’s contention, and information told to her
over the years by various individuals who apparently were not familiar with
the characterization of service for administrative separations based on
homosexual conduct, she could not have received a dishonorable discharge.
Her discharge was an administrative action, and not the result of a general
court-martial.  Additionally, it should be noted that then, as now,
discharges under other than honorable conditions for homosexual conduct
could only be issued under specific circumstances.  In all other cases
separation with an honorable, or under honorable conditions,
characterization was required.

5.  The fact that the applicant may have married shortly after her
administrative separation in 1983, or that she has been unable to reenlist
in the military, or secure a particular job, is noted but does not serve as
a basis to void her discharge, reinstate her, or show that there was any
evidence of error or injustice in her separation action.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 February 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 February 1986.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___RA __  ___EP __  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ Raymond Wagner_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101801                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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