RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 November 2005
      DOCKET NUMBER:  AR20050005633


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 her discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states she was told two years after her release her
discharge would be changed to honorable.  She states she got her
unemployment checks and educational benefits under the GI Bill and that she
would like to be able to use the Department of Veterans Affairs (DVA)
hospital when she is ill.

3.  The applicant provides no additional evidence in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 November 1980.  The application submitted in this case is
dated 5 April 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 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 was ordered to active duty on 20 February 1976 for
training and was released from active duty on 4 September 1976.  She
enlisted in the Regular Army on 23 November 1976 for a period of 4 years.
She successfully completed advanced individual training in military
occupational specialty 43M (fabric repairman).

4.  On 21 September 1977, nonjudicial punishment was imposed against the
applicant for using disrespectful language, behaving with disrespect, and
failing to obey two lawful orders.  Her punishment consisted of a reduction
to E-3 (suspended), a forfeiture of pay (suspended), extra duty, and
restriction.

5.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant's DD Form
214 (Certificate of Release or Discharge from Active Duty) shows that she
was discharged on 7 November 1980 with a discharge under other than
honorable conditions under the provisions of Army Regulation 635-200,
chapter 14, paragraph 14-33a(3) for misconduct – homosexual acts moral or
professional dereliction.  She had served 3 years, 11 months and 15 days of
creditable active service.

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

7.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  Chapter 14, paragraph 14-
33a(3), provides for discharge due to other acts of misconduct because of
homosexual acts.

8.  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.

9.  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.

10.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.   A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed her characterization of service was commensurate
with her overall record of service.  As a result, there is no basis for
granting the applicant's request.
4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 7 November 1980; therefore, the time for the
applicant to file a request for correction of any injustice expired on 6
November 1983.  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

JA_____  TO_____  CK______  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.




            ___James Anderholm____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005633                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19801107                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 14                  |
|DISCHARGE REASON        |Misconduct, homosexual acts moral or    |
|                        |professional dereliction                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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