RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 August 2004
      DOCKET NUMBER:  AR2004101799


      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:

|     |Ms. Gail Wire                     |     |Chairperson          |
|     |Ms. Karen Heinz                   |     |Member               |
|     |Mr. Paul Smith                    |     |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 under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was young at the time of the
incident and was seduced into acts of sodomy by a senior non-commissioned
officer (NCO).  The applicant further stated when he brought the incident
before his company commander, he was told to forget about it.

3.  The applicant provides a NGB Form 22 (National Guard Bureau Report of
Separation and Record of Service) with an effective date of 18 November
1960; a DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge) with an effective date of 7 August 1960, and a DD Form 214
with an effective date of 8 June 1962.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 August 1962 the date of his discharge.  The application
submitted in this case is dated 1 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.  The applicant enlisted in the Kentucky Army National Guard on
22 October 1959 and was ordered to active duty for training on 14 February
1960.  He successfully completed basic training and advanced individual
training.  The applicant was awarded the military occupational specialty
131.00 (Armor Crewman.)  On 15 June 1961 the applicant entered active duty.


4.  The applicant’s personnel records contain a DA Form 19-24 ( Sworn
Statement), dated 3 May 1962.  This form shows that the applicant responded
to questions asked by an Army criminal investigator.  The applicant
admitted that on several occasions, he engaged in acts of sodomy with a
senior NCO assigned to his unit.

5.  The applicant’s personnel records contain a DA Form 19-24 (Sworn
Statement), dated 3 May 1962.  This form shows that a senior NCO responded
to questions asked by an Army criminal investigator.  The senior NCO
admitted that on several occasion he engaged in acts of sodomy with the
applicant.

6.  On 8 May 1962, the applicant’s commander submitted a request to
discharge the applicant under the provisions of Army Regulation 635-89
Personnel Separation (Homosexuality).  The commander based his
recommendation on the fact that the applicant had engaged in homosexual
activity.

7.  The applicant’s personnel records contain a Statement of Respondent
(Class I or Class II Only). This letter shows that the applicant was
advised of the basis for his separation under the provisions of Army
Regulation 635-89.

8.  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.

9.  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.

10.  On 10 May 1962, the applicant underwent a psychiatric examination and
was diagnosed as a chronic sexual deviate manifested by overt
homosexuality.  The Medical Corps 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.

11.  On 18 May 1962, the unit commander recommended that the applicant be
discharged under the provisions of chapter 12 of Army Regulation 635-89 for
homosexual activity.

12.  On 23 May 1962, the intermediate commander recommended that the
applicant be discharged under the provisions of chapter 12 of Army
Regulation
635-89 for homosexual activity.

13.  On 24 May 1962, the commanding general of the 2nd Armor Division
approved the applicant’s discharge under the provisions of chapter 12 of
Army Regulation 635-89.  He also directed that the applicant be reduced to
the lowest enlisted grade and furnished an undesirable discharge
certificate.

14.  The applicant’s personnel records contain an Standard Form 88 (Report
of Medical Examination), dated 25 May 1962.  Item 77a (Examinee) of this
form shows the entry "is qualified for separation."

15.  On 8 June 1962, the applicant was discharged from active duty and was
issued an under other than honorable conditions discharge under provisions
of chapter 12 of Army Regulation 635-89, acceptance of discharge as a Class
II homosexual.  He served 2 years, 7 months, and 17 days of active duty.

16. On 17 June 1968, the Army Discharge Review Board (ADRB) considered the
applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and that the
discharge was properly characterized as under conditions other than
honorable.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7 (Active Duty Enlisted
Administrative Separations), currently in effect, provides that an
honorable discharge is a separation with honor and entitles the recipient
to benefits provided by law.  The honorable characterization is appropriate
when the quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

19.  Army Regulation 635-200, paragraph 3-7, currently in effect,  provides
that a general discharge is a separation from the Army under honorable
conditions.  When authorized, it is issued to a soldier whose military
record is satisfactory but not sufficiently meritorious to warrant an
honorable discharge.  A characterization of under honorable conditions may
be issued only when the reason for the soldier’s separation specifically
allows such characterization.

20.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was very young at the time of his
discharge and that he was seduced into acts of sodomy by a senior NCO.

2.  Records show that the applicant was one month from turning 19 years old
at the time his active service began and almost 20 years old at the time of
his discharge.  Therefore, his contention that he was young at the time of
his offenses does not mitigate his indiscipline.

3.  The applicant further contends that when he brought the sodomy incident
before his company commander, he was told to forget about it.  There is no
evidence and the applicant has failed to provide evidence to support this
claim.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

5.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

6.  A review of the applicant's record of service shows that the applicant
received an under conditions other than honorable discharge for being a
party to homosexual engagements.  Based on his record of indiscipline, the
applicant's service clearly does not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, he is not
entitled to an honorable discharge.

7.  Based on the applicant’s misconduct, his record of service did not meet
the regulatory standard of satisfactory service.  In the absence of a
record of satisfactory service, the applicant is not entitled to a general
under honorable conditions discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 June 1968.  As
a cghresult, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 16 June 1971.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___gw___  ___kh___  __pms __  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.




            ______Gail Wire ______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101799                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/10                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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