RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 OCTOBER 2004
      DOCKET NUMBER:  AR2004102235


      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. Lawrence Foster               |     |Member               |
|     |Ms. Marla Troup                   |     |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 that his November 1960 undesirable discharge be
upgraded.

2.  The applicant states he committed no "overt acts of homosexual conduct"
as noted by another Soldier in his witness statement.  He also maintains
that the "alleged overt acts of prior tours," for which he received an
honorable discharge, were solicited by the Army investigator in violation
of Article 31 because he was intoxicated at the time.

3.  The applicant states that the fact that he had completed two Army
schools and been awarded a marksmanship badge should be taken into
consideration as well as the change in the Army's "sexual orientation
policy" since his discharge.

4.  The applicant provides no evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offers nothing beyond that already provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error or injustice which
occurred on 14 November 1960.  The application submitted in this case is
dated
16 December 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 was a member
of the Army National Guard between 1954 and 1955 and served an initial
period of active duty between January 1956 and December 1958.  He was
released from that period of military service with an honorable
characterization of service in pay grade E-3.


4.  On 4 March 1960 he reenlisted for a period of 3 years.

5.  On 12 September 1960, while at Fort Dix, New Jersey, the applicant
provided a statement to an Army criminal investigator after being advised
of his rights under Article 31 of the Uniform Code of Military Justice.
The applicant acknowledged, by his signature, that he understood his right
not to have to make any statement whatsoever and that any statement he did
make could be used as evidence against him.  There is no indication in the
statement that he was intoxicated at the time.

6.  In the statement the applicant "did not deny being a homosexual" and
admitted to two acts of homosexual contact while in the Army and stationed
in France in 1956 and to one act in Chicago, Illinois, in September 1959
when he was not in the Army.

7.  He also related that on 9 September 1960, he approached another Soldier
in the company latrine and propositioned him.  The other Soldier declined.
The applicant stated that he approached that same Soldier again, on 11
September 1960, in the company latrine, but the Soldier again declined.  A
statement from the other Soldier was also included in the applicant's file
and was consistent with the statement that the applicant provided.  Both
the applicant and the other Soldier were privates (E-2).

8.  On 24 September 1960 the applicant was transferred from Fort Dix to
Fort Campbell, Kentucky.  A statement in his file indicates that the
commander of his gaining unit at Fort Campbell was aware of the
investigation being conducted at Fort Dix and indicated that the applicant
was assigned to administrative hold pending the outcome.

9.  Ultimately, on 25 October 1960, the applicant consulted with counsel
and acknowledged that his unit commander had initiated action to
administratively discharge him from the Army under the provisions of Army
Regulation 635-89, for homosexuality.  The commander noted that on two
occasions the applicant "accosted [another Soldier] and offered to commit a
homosexual act on his person" and that on three other occasions, "by his
own admission…committed homosexual acts with person(s) unknown."

10.  In acknowledging receipt of the separation action, the applicant
waived his right to a hearing before a board of officers, and indicated
that he understood the effects of a discharge under other than honorable
conditions, which he might receive.

11.  The recommendation was approved, and on 14 November 1960 the applicant
was discharged under other than honorable conditions and issued an
undesirable discharge certificate.  He was reduced to pay grade E-1 as part
of the separation action.

12.  Army Regulation 635-89, then in effect, stated that homosexual
personnel, irrespective of sex, will not be permitted to serve in the Army
in any capacity, and prompt separation of homosexuals is mandatory.  It
stated that an honorable or general discharge could be approved if the
individual concerned disclosed his homosexual tendencies at the time of
entrance into service, or if the individual had performed outstanding or
heroic military service, or if the individual has performed service over an
extended period and the convening authority determined that the best
interests of the service would be served thereby.  It states that upon
determination that an enlisted person was to be discharged from the service
with an undesirable discharge, the authority accomplishing the discharge
would, if the individual concerned were in a grade above E-1, automatically
reduce such an individual to grade E-1.

13.  Army Regulation 635-200, currently in effect, states 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 states 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.

14.  The regulation noted that to warrant retention of a member, 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.

15.  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.

19.  Article 31 of the Uniform Code of Military Justice is a statutory
enactment of judicial interpretations of the Fifth Amendment against
compulsory self-incrimination.  It states that no person subject to the
Uniform Code of Military Justice shall compel any person to incriminate
himself or to answer any question the answer to which may tend to
incriminate him.  It states that no person shall interrogate, or request
any statement from and accused or a person suspected of an offense without
first information him of the nature of the accusation and advising him that
he does not have to make any statement regarding the offense of which he is
accused or suspected and that any statement made by him may be used as
evidence against him in a trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant admitted to soliciting another
Soldier, in a company latrine area, for the purpose of engaging in a
homosexual act.  He admits that he did this not once, but twice, on two
different days, in the same company latrine area.  Such conduct was then,
and continues to be, a basis for administrative separation from the
military.  The fact that he may not have committed an “overt” act of
homosexual conduct is not evidence that his separation was erroneous or
unjust.

2.  The applicant argument that his Article 31 rights were violated is also
without foundation.  The evidence confirms that he was made aware of his
rights not to make any statements, and that he acknowledged that he was
aware of those rights by his signature on the statement.  There is no
evidence that he was intoxicated at the time he signed the statement.

3.  Contrary to the applicant’s contention, the Army has not changed its
“sexual orientation policy” since his discharge.  While a person’s sexual
orientation may be considered a personal and private matter and is not a
bar to entry or continued service if such an orientation is manifested by
homosexual conduct, it is then a basis for discharge.

4.  The fact that the applicant solicited another Soldier in a company
latrine would have, even today, been a basis for a discharge under other
than honorable conditions.  The company latrine would have been a location
subject to military control and the applicant’s conduct clearly 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 Armed Forces.

5.  The applicant’s completion of training and marksmanship qualification
is not sufficiently mitigating to justify upgrading his discharge.

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 14 November 1960; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
13 November 1963.  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 __  ___LF  __  __MT ___  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                 |AR2004102235                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041028                                |
|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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