RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 January 2005
      DOCKET NUMBER:  AR20040000540


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonaldo            |     |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 discharge be upgraded from an
undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he was discharged from the
service for being a homosexual and security risk.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice that occurred on

18 May 1962, the date of his separation from active duty.  The application
submitted in this case is dated 15 April 2004.

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.  The applicant enlisted on 5 October 1961 for a period of three years.
He successfully completed basic combat training at Fort Leonard Wood,
Missouri and did not complete advanced individual training at Fort Devens,
Massachusetts.

4.  A DA Form 19-24 (Sworn Statement), dated 16 March 1962, shows that the
applicant responded to questions asked by an Army investigator.  The
applicant admitted that he was a homosexual since he was a young child and
had been active in homosexual activities prior to his enlistment.

5.  On 30 March 1962, the applicant underwent a psychiatric examination and
was diagnosed as a chronic sexual deviate manifested by overt
homosexuality.
The Medical Corps psychiatrist stated that the applicant commented that "he
has not been involved in any acts since his entry into the service and
desires to avoid such but is greatly distressed about his current situation
knowing that if he continues he will act out homosexuality."

6.  The psychiatrist continued that there was no indication that the
applicant was not telling the truth about any of the information he gave
regarding his longstanding homosexuality problem.

7.  The psychiatrist opined that the applicant was mentally responsible,
able to distinguish right from wrong and to adhere to the right.  He opined
that his condition was not amenable to medical or psychiatric treatment in
a military setting and recommended that the applicant be separated under
the provisions of Army Regulation 635-89 (Personnel Separation
(Homosexuals)).

8.  On 2 May 1962, the applicant’s commander submitted a request to
discharge the applicant under the provisions of Army Regulation 635-89.
The commander based his recommendation on the psychiatric evaluation and
the applicant's sworn statement indicating he was a homosexual.

9.  Records contain a Statement of Respondent, dated 2 May 1962.  This
letter shows that the applicant was advised of the basis for his separation
under the provisions of Army Regulation 635-89.

10.  The applicant indicated that he did not desire to be counseled by
appropriate counsel, that he waived consideration of his case by a board of
officers, that he waived a personal appearance before a board of officers,
that he did not provide statements on his own behalf and that he waived
representation by military counsel.

11.  The applicant also indicated that he was aware that as a result of the
issuance of a discharge under conditions other than honorable that he may
be ineligible for many or all benefits as a veteran under both Federal and
State laws, and that he may expect to encounter substantial prejudice in
civilian life based on this undesirable discharge.

12.  On 14 May 1962, the appropriate authority approved the applicant's
discharge under the provisions of Army Regulation 635-89.  He directed that
the applicant be issued an undesirable discharge and be reduced to the
lowest enlisted grade.  The applicant completed 7 months and 14 days of
creditable active service of a 3-year enlistment.

13.  Army Regulation 635-89, in effect at the time, governed separation of
homosexuals.  It stated, in pertinent part, that personnel would be
discharged under other than honorable conditions if the case falls within
Class II.  Class II consisted of those cases in which personnel have
engaged in one or more homosexual acts not within the purview of Class I
(homosexual acts involving a child under the age of 16) during military
service.
14.  Army Regulation 635-200, chapter 15, prescribes the current criteria
and procedures for the investigation of homosexual personnel and their
discharge from the Army.  When the sole basis for separation is
homosexuality, a discharge under other than honorable conditions may be
issued only if such characterization is otherwise warranted and if there is
a finding that during the current term of service the Soldier attempted,
solicited or committed a homosexual act by using force, coercion or
intimidation; with a person under      16 years of age; with a subordinate;
openly in public view; for compensation; aboard a military vessel or
aircraft; or 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 Soldiers of the Armed Forces.
 In all other cases, the type of discharge will reflect the character of
the Soldier’s service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with regulations applicable at the time with no indication of
procedural errors which would tend to jeopardize his rights.  He admitted
to having a homosexual relationship, an act that by itself provided for a
characterization of separation of undesirable.

2.  Under current standards, when the sole basis for separation is
homosexuality, the type of discharge will reflect the character of the
soldier’s service unless there is a finding that the act of homosexuality
was committed under any one of the seven conditions.

3.  The applicant was a private and admitted to having a homosexual
relationship with other people prior to his enlistment.  There is no
evidence in the applicant’s sworn statement or in any other discharge
document to show he met any one of the conditions.  His service is
otherwise free of any disciplinary actions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE____  __RTD__  __YM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all of the Department of the Army
records related to this case be corrected by showing that the individual
concerned was separated from the service with an Honorable Discharge
Certificate on 18 May 1962.

2.  That the Department of the Army issue to him an Honorable Discharge
Certificate from the Army of the United States, dated 18 May 1962, in lieu
of the undesirable discharge of the same date now held by him.




                                  _____Fred Eichorn_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000540                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |6 January 2005                          |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |144.9421.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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