RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040010481


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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 the narrative reason for separation in item
28, "Admission of Homosexuality/Bisexuality," on his DD Form 214
(Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states that the "Don't Ask, Don't Tell" policy was given
during President Bill Clinton's administration.  He has suffered mental
anguish whenever he presents this document to a prospective employer.

3.  The applicant indicated that he had provided documents in support of
his application; however, there are no documents available.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 May 1985, the date of his separation.  The application
submitted in this case was received on 1 December 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 enlisted in the Regular Army on 1 July 1982 for a period
of two years.  He completed the required training and was awarded military
occupational specialty 95B (Military Police).  He was assigned to Germany
on 12 November 1982.

4.  He was promoted to specialist four on 1 November 1983.

5.  The applicant was discharged on 28 February 1984 for the purpose of
immediate reenlistment.  He reenlisted on 29 February 1984 for a period of
three years.

6.  On 16 January 1985, the applicant was notified of pending separation
action under the provisions of Army Regulation 635-200, chapter 15 for
homosexuality.  He was advised of his rights.

7.  The applicant acknowledged the notification, consulted with legal
counsel, requested consideration of his case by a board of officers,
requested personal appearance before a board of officers, and did not
submit statements in his own behalf.  He acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits as a veteran under both Federal
and State laws.

8.  On 16 January 1985, the unit commander recommended that the applicant
be separated from the service before the expiration of his term of service.
 The unit commander stated that the discharge is recommended because of the
applicant's homosexual nature.

9.  On 15 March 1985, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being disrespectful in
language toward his superior noncommissioned officer and willfully
disobeying a lawful order from a noncommissioned officer.  His punishment
consisted of a reduction to the grade of E-3 (suspended for 90 days), extra
duty for 14 days under the supervision of a master sergeant, and
restriction for 14 days.

10.  On 15 March 1985, the applicant consulted again with legal counsel and
he elected to waive consideration of his case by a board of officers.  He
submitted statements in his own behalf.

11.  In a 12 April 1985 sworn statement, the applicant stated that he had
verbally admitted to a noncommissioned officer that he had sexual
encounters with other males, mostly German Nationals.  He stated that at no
time had he ever had the intentions of conducting homosexual activities
within any military billets.

12.  On 15 May 1985, an Assistant Staff Judge Advocate reviewed the
applicant's case and determined that it was legally sufficient for
discharge for homosexuality.  The Assistant Staff Judge Advocate noted
there was some evidence the applicant had stated he had relations with
other Military Policemen; however, his word was doubted and an under other
than honorable discharge was not considered appropriate.

13.  The separation authority approved the separation and directed that the
applicant be discharged under the provisions of Army Regulation 635-200,
chapter 15 for homosexuality with issuance of a General Discharge
Certificate.

14.  The applicant was discharged on 30 May 1985 under the provisions of
Army Regulation 635-200, paragraph 15-3b for admission of
homosexuality/bisexuality with a general under honorable conditions
discharge.  He completed 2 years and 11 months total active military
service with no days of lost time.
15.  There is no indication that the applicant applied to the Army
Discharge Review Board within its 15-year statute of limitations.

16.  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.

17.  The Human Rights Campaign Internet website www.hrc.org states the
"Don't Ask, Don't Tell" policy was implemented in 1993 during Bill
Clinton's presidency.  This policy banned the military from investigating
service members about their sexual orientation.  Under the current policy,
service members may be investigated and administratively discharged if they
made a statement that they were lesbian, gay or bisexual; engaged in
physical contact with someone of the same sex for the purposes of sexual
gratification; or married, or attempted to marry, someone of the same sex.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations in effect at the time.  There is no
indication of procedural errors which would tend to jeopardize his rights.

2.  The evidence of record shows he voluntarily admitted that he had
participated in homosexual acts with mostly German Nationals.  As a result,
he was discharged from the Service under the provisions of Army Regulation
635-200, paragraph 15-3b for admission of homosexuality/bisexuality.

3.  The "Don't Ask, Don't Tell" policy was implemented in 1993.  However,
this policy states that service members could be administratively
discharged if they made a statement that they were lesbian, gay or
bisexual; engaged in physical contact with someone of the same sex for the
purposes of sexual gratification; or married, or attempted to marry,
someone of the same sex.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the narrative reason for separation issued to him
was in error or unjust.  Therefore, there is no basis for granting his
request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in 1993, when the Don't Ask, Don't Tell
policy came into effect; therefore, the time for the applicant to file a
request for correction of any error or injustice expired in 1996.  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

WP______  RD______  JM______  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.




                                  William Powers________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010481                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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