RECORD OF PROCEEDINGS


      IN THE CASE OF:    .


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20040010331


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, the narrative
reason for separation be changed to hardship, and that he be given a
reenlistment eligibility (RE) code of RE-1.

2.  The applicant states, in effect that he needs these items corrected to
allow him to reenlist.

3.  The applicant provides a lengthy personal statement outlining his
contentions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 6 October 1988, the date of his discharge.  The application
submitted in this case is dated 10 November 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 limitations 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's records show he enlisted under the delayed entry
program (DEP) on 22 August 1985, entered active duty on 30 October 1985,
completed training, and was awarded the military occupational specialty
(MOS) 54E (Tactical Fire Operations Specialist).

4.  The applicant's record is unremarkable until he admitted to his first
sergeant, on 29 July 1988, that the reason that he did not wish to attend
PLDC (platoon leader development course) was that he had a homosexual
encounter with a fellow Soldier.

5.  In a statement submitted by the applicant at that time, he indicated
that after having a homosexual encounter with a fellow Soldier he had
determined that this was the life style he wished to lead and that he
recognized that this life style was not compatible with military life.

6.  A psychiatrist interviewed the applicant on 8 August 1988 and
determined that, based on the applicant's statements and admission of
engaging in homosexual activities, it was appropriate to process him for
separation under the provisions of Army Regulation 635-200, chapter 15.

7.  On 22 August 1988, the applicant's unit commander initiated separation
proceeding for admission of homosexuality activities under the provisions
of Army Regulation 635-200, chapter 15.  The unit commander recommended the
applicant receive an honorable characterization of service.

8.  On 24 August 1988, the applicant acknowledged the discharge action and
waived his rights to be represented by counsel and to make any additional
statements on his own behalf.

9.  The separation authority approved the discharge recommendation and
directed that the applicant be discharged under the provisions of Army
Regulation 635-200, chapter 15 with a general discharge.

10.  The applicant was discharged on 6 October 1988 with a general
discharge.  He had 2 years, 11 months, and 7 days of creditable active
service.

11.  The applicant requested a review of his discharge and, on 16 May 1990,
the Army Discharge Review Board (ADRB) granted the applicant an upgrade of
his discharge to honorable.  However, it denied him any change of the
narrative reason for separation.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 6 of that regulation provides,
in pertinent part, for the separation of personnel because of genuine
dependency or hardship.  An application for such separation will be
approved when a service member can substantiate that his situation or
immediate family's situation has been aggravated to an excessive degree
since enlistment, that the condition is not temporary and that discharge
will improve the situation.

14.  Army Regulation 635-200, chapter 15 states that homosexuality is
incompatible with military service and provides, in pertinent part, for the
separation of members who engage in homosexual conduct or who, by their
statements, demonstrate a tendency to engage in homosexual conduct.

15.  Army Regulation 601-280 (Army Reenlistment Program) covers eligibility
criteria, policies, and procedures for retention and reenlistment.  It
states that a reenlistment code of 1 (RE-1) is for individuals who were
fully qualified for reenlistment when last separated.  An RE-4 is given to
individuals separated from their last period of service with a
nonwaiverable disqualification.

16.  Army Regulation 601-280, paragraph 3-9e states that Soldiers with the
disqualifications listed in paragraphs (1) through (11) of this section are
ineligible for reenlistment at any time and that requests for waiver or
exception to policy will not be granted.  Soldiers in this category
include, but are not limited to, Soldiers with a history of homosexual
conduct.

DISCUSSION AND CONCLUSIONS:

1.  The ADRB granted the applicant an upgrade of the characterization of
the applicant's service to honorable; therefore, this point is moot and
will not be addressed further.

2.  The applicant has provided no documentation that a hardship warranting
a discharge under provisions of chapter 6 existed.  Therefore, no change of
his narrative reason for separation is warranted.

3.  Discharge for admission of homosexuality is a nonwaivable bar to
reenlistment and the applicant's discharge properly reflects the
appropriate RE code of 4.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 May 1993.  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

__PMS__  __LGH___  _YM_______  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.




                                  __       Paul M. Smith_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010331                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19881006                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.00                                  |
|2.                      |110.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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