RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050016969


      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. Eric Andersen                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Dennis Phillips               |     |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 general under honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states he was in an alcoholic condition at the time of
his discharge and was not in a healthy state of mind at the time he
admitted to homosexuality.  He recalls being informed during the discharge
procedures that the general under honorable conditions discharge would be
automatically upgraded to an honorable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 October 1987.  The application submitted in this case is
dated 22 September 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.  After having had prior service in the U.S. Marines Corps, the applicant
enlisted in the Regular Army on 18 February 1986.  He completed basic
training and advanced individual training and was awarded military
occupational specialty 26Q (Tactical Satellite System Operator).  He was
promoted to specialist four on 1 February 1987.

4.  The applicant underwent a mental status evaluation on 31 March 1987.
He was diagnosed as being a homosexual and a transvestite, within the
meaning of Army Regulation 40-501, Army Regulation 635-200 and the
Diagnostic and Statistical Manual (DSM) III.  The psychiatrist recommended
administrative separation.  The applicant was cleared for any
administrative action deemed appropriate by the commander.

5.  The applicant's service personnel records contain a DA Form 2823 (Sworn
Statement), undated.  He stated that he agreed with his diagnosis and
recommendations and accepted separation from the Army.  He admitted that he
was a homosexual and a transvestite.

6.  On 30 June 1987, 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.  The applicant acknowledged
the notification, consulted with legal counsel, waived consideration of his
case by an administrative separation board, and did not submit statements
in his own behalf.

7.  The unit commander recommended that the applicant be separated from the
Army under the provisions of Army Regulation 635-200, chapter 15 due to
homosexuality.

8.  On 1 October 1987, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent without leave
(AWOL) from 28 July 1987 to 24 August 1987.  His punishment consisted of
reduction to the grade of private E-2; forfeiture of $369.00 pay per month
for 2 months (suspended for 180 days and to be automatically remitted if
not vacated before 22 March 1988; extra duty for 45 days; and restriction
to the battalion area, chow hall, medical facility and battalion chapel for
45 days.

9.  On 20 October 1987, the separation authority directed that the
applicant be discharged under the provisions of Army Regulation 635-200,
chapter 15 by reason of homosexuality with issuance of a General Discharge
Certificate.

10.  On 20 October 1987, the applicant was discharged under the provisions
of Army Regulation 635-200, chapter 15 with a general under honorable
conditions discharge.  He completed 1 year, 7 months, and 7 days of active
military service during that enlistment with 27 days of lost time.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board within its 15-year statute of limitations.

12.  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.

13.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

14.  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.  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's service record shows he received one Article 15 for
being AWOL for 27 days.  There is no evidence to show he was ever
considered for separation due to this misconduct.

3.  Under current standards, when the sole basis for separation is
homosexuality, the type of discharge will reflect the character of the
Soldier's service unless there is a finding that the act of homosexuality
was committed under any one of the several conditions.

4.  It appears the chain of command determined that the applicant's overall
military service did not meet the standards for an honorable discharge as
defined in Army Regulation 635-200 and appropriately characterized his
service as general under honorable conditions.

5.  The applicant has not presented sufficient evidence which warrants
changing his general discharge to an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 October 1990.  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

EA______  MF______  DP______  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.




                                  Eric Andersen_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016969                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19871020                                |
|DISCHARGE AUTHORITY     |AR635-200, CHAPTER 15                   |
|DISCHARGE REASON        |Homosexuality                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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