RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR20050004116


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Angela G. Love                |     |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 undesirable discharge (UD) be upgraded
to general (GD) under honorable conditions.

2.  The applicant states that he served his country for 16 months and would
have served longer if it was not for him being a homosexual and being
discovered.  He also states that he was a proud American Soldier and due to
cancer will be dying soon, and he wants to die being proud and that he had
the chance to serve his country.

3.  The applicant provides a copy of a letter from his private physician in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1964, his date of discharge.  The application
submitted in this case is dated 9 March 2005.

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 military records show he entered active duty (AD) on
16 April 1963, as an intermediate speed radio operator.

4.  The applicant underwent a separation medical examination on 2 July 1964
and was found qualified for separation.

5.  The applicant underwent a psychiatric evaluation on 15 July 1964 and
was diagnosed as having a sexual deviation, homosexuality, which was
characterized by preference for sexual relations with persons of the same
sex.

6.  His pertinent history revealed that he reported his behavior on his own
volition.  He stated that his homosexuality began when he was 9 years old
and at the age of 15 became involved in sodomy with one man and the
relationship continued until he entered the service.
7.  His mental status revealed that he was alert and cooperative, speech
patterns were relevant and coherent, affect was appropriate, and there was
no evidence of delusions, hallucinations, or other symptoms of overt
psychosis.  There were no gross defects of orientation, intelligence or
judgment.  Motivation toward service was defective.  Attitudes toward
service were unfavorable in view of his intent and desire to leave the
service and questionable motivation for help and change with his sexual
conflict.  Further rehabilitation efforts would not be effective in
altering the applicant's basic personality defects and producing a
satisfactory Soldier in all respects.  It was determined that he was a
confirmed homosexual.  It was recommended that he be eliminated under the
provisions of Army Regulation 635-89, for sexual deviation, homosexuality.

8.  On 24 July 1964, the commander recommended that the applicant be
separated under the provisions of Army Regulation 635-89, for
homosexuality. He based his recommendation on the applicant’s admission of
being involved in homosexual relations with several other persons, starting
at a very early age.  He indicated that his conduct and efficiency were
good and that he had no record of disciplinary action or conviction by
court-martial.

9.  After consulting with counsel, the applicant waived his rights and
indicated that he would accept discharge for the good of the service.  He
elected to submit a statement in his own behalf.  In his statement, he
described the events from past to present on how he became involved in
homosexual acts.  He also stated that he did not want any treatment in this
respect and did not want to receive any type of cure and enjoyed his way of
life.  He also understood and acknowledged that he might encounter
substantial prejudice in civilian life and might be ineligible for many or
all benefits administered by the Veterans Administration (VA) if an
undesirable discharge were issued.

10.  On 24 August 1964, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an UD and be
reduced to the lowest enlisted grade.  The applicant was discharged on
28 August 1964.  He had 1 year, 4 months, and 13 days of creditable
service.

11.  The applicant provides a copy of a letter from his private physician.
The physician states that the applicant had been recently diagnosed with
chronic myelogenous leukemia.  He also had significant upper
gastrointestinal bleeding and as a result of this condition required
surgical intervention.  He also states that the applicant's prognosis was
likely less than 36 months and he was unlikely to ever resume meaningful
employment.

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

13.  Army Regulation 635-89, in effect at the time, prescribed the criteria
and procedures for the investigation of homosexual personnel and their
discharge from the Army.  It provided, in pertinent part, that an honorable
or general discharge could be issued under exceptional circumstances but
that in most cases an undesirable discharge would be issued.  Homosexual
acts were punishable by court-martial and in each case the major commander
was responsible for determining whether the best interests of the service
would be served by punitive or administrative measures.  Commanders had
discretion on the discharge to be issued to Class II homosexuals; however,
all individuals who were deemed Class I homosexuals were not authorized to
receive a general or honorable discharge.

14.  Army Regulation 635-200, paragraph 3-7, 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.

15.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  Inasmuch as the applicant was discharged based on his admission of
homosexuality and admitted to being involved in homosexual relations with
several persons, and one of them a Soldier, the Board finds that he was
properly discharged in accordance with the applicable regulations in effect
at the time and that he was issued the proper discharge.





2.  The evidence shows that the applicant admitted to his commander and the
examining psychiatrist that he was homosexual and had engaged in homosexual
activities prior to entering the military and had engaged in homosexual
acts with one Soldier.  He also submitted a detailed statement describing
the events from past to present on how he became involved in homosexuality
at an early age.

3.  The applicant contends that he would have served his country longer if
he it was not for him being a homosexual and being discovered.  He noted
that he is now dying from cancer and would like to die being proud.  The
Board acknowledges the applicant's terminal condition; however, his
contentions and condition do not support an upgrade of his discharge.  The
applicant has not fully convinced the Board with any additional evidence
that his discharge was improper or inequitable or should now be upgraded.

4.  The Board notes the supporting document submitted by the applicant from
his private physician with his application.  This document is not
sufficiently mitigating to warrant relief, given the available facts of the
case.

5.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 August 1967.  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

__AL____  __JM   _  __RS___   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.




                                  ___John T. Meixell    ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004116                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19640828                                |
|DISCHARGE AUTHORITY     |AR 635-89                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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