RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  1 September 2005 
	DOCKET NUMBER:  AR20050001819 


	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. Stanley Kelley

Chairperson

Ms. Barbara J. Ellis

Member

Mr. Richard T. Dunbar

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, in effect, that his discharge be changed to a medical discharge.

2.  The applicant states that his discharge was due to medical reasons, to include depression and anxiety, not homosexuality.  He states that his records indicate he never engaged in any sexual acts with military personnel.  He also states he was prejudiced against because of his civilian life prior to entering the Army.  He was labeled a homosexual, but he has not nor ever has been an undesirable person.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 October 1968.  The application submitted in this case is dated 9 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 enlisted in the Regular Army on 16 February 1967.  He completed the required training and was assigned to Battery C, 3rd Battalion, 43rd Artillery in Edgemont, Pennsylvania in duty military occupational specialty 76A (Supply Clerk).  

4.  He was promoted to private first class 27 November 1967.

5.  In a 14 June 1968 Witness Statement (DA Form 2823), the First Sergeant of the Battery C, 3rd Battalion, 43rd Artillery stated he was in the battery barracks and he noticed a private and the applicant were in the same bed.  He woke both of them and noticed that they were in their shorts and undershirts.  As far as he could tell they were really asleep before he shook them.  He informed the Commanding Officer of the incident and it was agreed that a request would be made to the local Criminal Investigation Division (CID) to investigate this unusual incident.  He stated that this was the first time that either of the two men had come to his attention in regards to anything of a homosexual nature.

6.  A DA Form 2820 (Statement by Accused or Suspect Person) dated 17 June 1968 shows the applicant was interrogated by a criminal investigator of the CID, Military Police concerning acts of sodomy.  The applicant admitted that he had engaged in homosexual acts prior to joining the Army.  He stated he joined the Army on 16 February 1967.  He had been assigned to Battery C of the 3rd Battalion, 43rd Artillery since 27 September 1967.  In December 1967, he met a private and was attracted to him.  As far as he could tell the private was not a homosexual.  He admitted that on 23 May 1968, he could not resist it any longer. While the private was asleep in his bunk in the Battery C Barracks, he got into bed with him.  He stated that nothing happened between them.  The private did not wake up until the First Sergeant of Battery C woke them up.  In conclusion, he stated that he was satisfied being homosexual.  

7.  The applicant underwent a psychiatric examination on 2 August 1968 at the Valley Forge General Hospital, Phoenixville, Pennsylvania.  He was diagnosed as having sexual deviation, homosexuality.  The psychiatrist stated that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist recommended the applicant be separated from the military under the provisions of Army Regulation 635-89.

8.  On 22 August 1968, the applicant was notified of pending separation action under the provisions of Army Regulation 635-89 for homosexuality.  He was advised of his rights.  

9.  The applicant acknowledged the notification, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.  He acknowledged that he could expect to encounter substantial prejudice in civilian life in the events a general under honorable conditions discharge was issued to him.  He further acknowledged that, as the result of issuance of an undesirable discharge (under other than honorable conditions discharge), he could be ineligible for many or all benefits as a Veteran under both federal and state laws, and that he could expect to encounter substantial prejudice in civilian life.

10.  On 26 August 1968, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-89 for homosexuality.  The unit commander stated that the applicant's discharge was recommended because of homosexuality existing prior to and during his tour of service.

11.  The applicant underwent a physical examination on 30 August 1968.  His Report of Medical Examination indicated he had homosexual tendencies and was given a physical profile of 111114.  

12.  On 17 October 1968, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-89 with issuance of an Undesirable Discharge Certificate and reduced him to the lowest rank.

13.  On 24 October 1968, the applicant was discharged from active duty in the rank of private under the provisions of Army Regulation 635-89 based on acceptance of discharge or discharge as result of board action (class II homosexual) with an undesirable discharge.  He completed 1 year, 8 months and 9 days active military service with no days of lost time.

14.  On 5 May 1969, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  

15.  Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  Homosexuals were divided into three classes.  Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively.

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.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

18.  Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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.  

2.  The applicant underwent a psychiatric examination in August 1968 which diagnosed him as having sexual deviation, homosexuality.  The psychiatrist determined that the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  

3.  The evidence of record shows that prior to the applicant's separation in October 1968, competent medical authority determined that he was then medically qualified for separation.  His Report of Medical Examination indicated he had homosexual tendencies.  

4.  There is no evidence which indicates that depression and anxiety rendered him medically unfit to perform his duties.  In addition, he received a discharge under other than honorable conditions and was not eligible for referral for physical disability processing.  

5.  The applicant's authority and narrative reason for separation are correct and were applied in accordance with the applicable regulations.
6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 May 1969, the date of the ADRB review; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 May 1972.  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

____sk__  ___bje__  ___rtd__  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.




_____Stanley Kelly_______
          CHAIRPERSON




INDEX

CASE ID
AR20050001819
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19681024
DISCHARGE AUTHORITY
AR635-89
DISCHARGE REASON
Acceptance of discharge or discharge as result of board action (class II homosexual)
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0200
2.

3.

4.

5.

6.