RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060007356


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he requests this correction so
that he may set the record straight and apply for benefits associated with
an honorable discharge.

3.  The applicant provides a copy of a Durable Power of Attorney Under
Section 709.08 of the Florida Statutes, dated 24 January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 March 1981, the date the Army Discharge Review Board
changed his discharge.  The application submitted in this case is dated 1
May 2006.

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 service records show that he enlisted in the
Army National Guard of Florida (FLARNG) on 25 April 1960 and was ordered to
active duty training (ACDUTRA) on 17 July 1960.  He was trained in and
awarded military occupational specialty (MOS) 192 (Air Defense Artillery
Automatic Weapons Crewman).  The applicant was released from ACDUTRA on
21 December 1960 to return to the FLARNG.

4.  On 28 September 1961, the applicant enlisted in the Regular Army for a
period of 3 years, entered active duty, and served in MOS 140 (Artillery
Canoneer).  The applicant served 36 months in Germany from 14 November 1961
to 8 November 1964.  On 15 June 1962, while serving in Germany, he
reenlisted for a period of 6 years.  The applicant was reclassified into
MOS 13B (Light and Medium Field Artillery Crewman) and then served 11
months in Korea from 15 December 1964 to 5 November 1965.

5.  The applicant's military service record documents no acts of valor,
significant achievement, or service warranting special recognition.

6.  On 17 April 1963, the applicant was convicted at a summary court-
martial convened by Headquarters, 1st Rocket Howitzer Battalion, 9th
Artillery (Germany) for, on or about 24 March 1963, stealing two packs of
cigarettes of a value of about $.30, which was the property of another
Soldier.  His punishment was hard labor without confinement for 30 days,
forfeiture of $15.00 per month for 1 month, and reduction to the grade of
private (E-1).  The sentence was approved and ordered executed by the
convening authority on 17 April 1963.

7.  On 26 July 1963, non-judicial punishment was imposed against the
applicant for failure to pay a debt for an airline ticket and breach of the
peace.  However, the applicant's record is absent a copy of the document
showing his punishment.

8.  On 10 June 1965, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-89
(Personnel Separations - Homosexuality).  At that time the applicant was
furnished a copy of the commanding officer's report and copies of
statements submitted to support the recommendation, along with the names of
all witnesses who would appear or submit a statement to be used against
him, and advised that an Undesirable Discharge Certificate may be issued to
him and that he was entitled to a hearing before a Board of Officers.  The
separation action also contained a certificate from the captain serving as
the Division Psychiatrist, Neuropsychiatric Service,
15th Medical Battalion (Korea), dated 7 June 1965, which shows, in
pertinent part, that the applicant stated that he was drunk on the night of
the incident and did not remember indulging in any sort of homosexual act.
The applicant acknowledged his right to a hearing before a Board of
Officers, requested representation by legally qualified counsel, and
indicated his desire to submit statements in his behalf.

9.  On 19 July 1965, the applicant received notification to appear before a
Board of Officers convened under the provisions of Army Regulation 635-89
for the purpose of determining whether he should be discharged before the
expiration of his term of service.

10.  On 20 July 1965, non-judicial punishment was imposed against the
applicant for willfully breaking restriction on 18 July 1965.  His
punishment consisted of a forfeiture of $49.00 and retention of $98.00
until 19 August 1965.

11.  On 2 August 1965, a Board of Officers convened under the provisions of
Army Regulation 635-89 and Army Regulation 15-6 (Procedures for
Investigating Officers and Boards of Officers) to consider appropriate
action in the case of the applicant who had been recommended for
elimination from the service.  After conducting the hearing and carefully
considering the evidence presented, the board found that the applicant was
no longer suited for military service, recommended that he be separated as
a class II homosexual, and issued an undesirable discharge.  On 2 October
1965, the recommendation was approved.

12.  On 8 November 1965, the applicant was discharged.  The DD Form 214 he
was issued confirms he completed a total of 5 years, 3 months, and 29 days
of active military service.

13.  On 10 December 1979, the applicant applied to the Army Discharge
Review Board (ADRB) for upgrade of his discharge.  On 5 March 1981, the
ADRB reviewed the records of the applicant, along with the regulation in
effect at the time of discharge and at the time of review, and determined
that the applicant was properly, but not equitably discharged.  In arriving
at this conclusion, the ADRB took into consideration the acts of
indiscipline accumulated by the applicant, which included 2 Article 15’s
and 1 Summary Court-Martial.  The ADRB also noted and considered the
neuropsychiatric evaluation in the applicant's file.  Based on the evidence
and the reason for separation, the ADRB unanimously voted to grant partial
relief with a General Discharge.  The ADRB stipulated in its directive that
full relief was denied in view of the acts of indiscipline accumulated by
the applicant, which the ADRB did not consider supportive of fully
honorable service.

14.  The DD Form 214 issued as a result of the ADRB action confirms the
authority for the applicant’s separation is Army Regulation 635-89.  This
document also shows that, based on the ADRB's determination, the
applicant's character of service was changed to "under honorable
conditions."

15.  Army Regulation 635-89, in effect at the time of the applicant's
discharge, prescribes the authority, criteria, and procedures for the
disposition of military personnel who are homosexuals and military
personnel who engage in homosexual acts, or are alleged to have engaged in
such acts.  This document also provides, in pertinent part, that enlisted
Soldiers whose cases are processed under this regulation in the class II
category normally will be furnished an undesirable discharge certificate,
except that an honorable or general discharge certificate may be issued
when an individual has been awarded a personal decoration, or if warranted
by the particular circumstances in a given case.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), paragraph 3-7b, 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

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor.  The honorable characterization is
appropriate when the quality of the Soldier’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.  Whenever there is doubt, it is to be resolved in
favor of the individual.

18.  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 (Army Regulation 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 ABCMR 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 his discharge should be upgraded to set the
record straight and so that he may apply for benefits associated with an
honorable discharge.  The applicant's contentions were carefully considered
and found to have insufficient merit in this case.

2.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation, to include
consideration of his case by a board of officers.  All requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

3.  The evidence of record also shows that the ADRB reviewed the
applicant's discharge and determined that he was properly discharged, but
not equitably discharged.  As a result, the ADRB granted the applicant
partial relief and upgraded his discharge to a general discharge (i.e.,
under honorable conditions).

4.  The evidence of record further shows that, during the period of service
under review, the applicant’s military service record shows instances of
indiscipline not associated with the reason he was recommended for
discharge, which include stealing, failure to pay a debt, breach of the
peace, and breaking restriction. Thus, the evidence of record clearly shows
that the applicant's overall quality of service during the period of
service under review was not sufficiently meritorious to warrant an
honorable discharge, which is a discharge that is issued to a Soldier who
generally has met the standards of acceptable conduct and performance for
Army personnel.  Therefore, the applicant is not entitled to an honorable
discharge.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 March 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 4 March 1984.  However, 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

___ALR__  ___FCJ _  __QAS__  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.




                                             Allen L. Raub_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007356                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19570406                                |
|DISCHARGE AUTHORITY     |AR                                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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