RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        January 9, 2007
      DOCKET NUMBER:  AR20060007824


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |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 undesirable discharge be
upgraded and that his narrative reason be changed.

2.  The applicant states that he is ready to do anything for his country.
He does not want to go to his grave with this shame.  He referenced the
“Don’t Ask, Don’t Tell” policy.  He states that it was a practical joke
that backfired.

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 26 May 1967.  The application submitted in this case is dated
17 April 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 enlisted in the Regular Army on 12 September 1966 for a
period of three years.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty
63K (Quartermaster Heavy Equipment Repairman).  He was advanced to private
E-2 on 16 November 1966.

4.  In a 10 January 1967 official statement, a private indicated that he
had witnessed the applicant in the act of committing sodomy in the latrine
located in the barracks.  In another official statement, dated 10 January
1967, a private indicated that he had taken a picture of the applicant and
a male Soldier kissing in the barracks.

5.  The applicant underwent a psychiatric evaluation on 14 February 1967 at
the Mental Hygiene Consultation Branch, Fort Lee, Virginia.  His diagnosis
was sexual perversion, homosexuality.  The Report of Psychiatric Evaluation
indicated that the applicant and another private E-2 allegedly planned to
obtain a release from the United States Army by feigning homosexuality.
The evaluating officer indicated that it was believed that the applicant
was a homosexual and recommended prompt separation from the service in
accordance with Army Regulation 635-89.

6.  On unknown date, the applicant was notified of pending separation
action under the provisions of Army Regulation 635-89, for homosexuality.
He was advised of his rights.  The applicant acknowledged the notification,
consulted with legal counsel, waived consideration of his case by a board
of officers, and did not submit statements in his own behalf.

7.  On 2 March 1967, the unit commander recommended that the applicant be
discharged from the service with a general discharge.

8.  On 4 May 1967, the applicant was convicted by a special court-martial
of committing sodomy with another private and for being absent without
leave (AWOL) from 4 April 1967 through 20 April 1967.  He was sentenced to
be restricted to the limits of company area for two months.

9.  On 12 May 1967, the intermediate commander recommended the applicant be
discharged from the service with an Undesirable Discharge Certificate.

10.  On 23 May 1967, 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 enlisted
grade.

11.  On 26 May 1967, the applicant was discharged in the rank of private
under the provisions of Army Regulation 635-89 with an undesirable
discharge.  He completed 8 months and 15 days of active military service
with 16 days of lost time.

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

13.  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.

14.  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.

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

16.  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.

17.  The Human Rights Campaign Internet website www.hrc.org states the
"Don't Ask, Don't Tell" policy was implemented in 1993 during Bill
Clinton's presidency.  This policy banned the military from investigating
service members about their sexual orientation.  Under the current policy,
service members may be investigated and administratively discharged if they
made a statement that they were lesbian, gay or bisexual; engaged in
physical contact with someone of the same sex for the purposes of sexual
gratification; or married, or attempted to marry, someone of the same sex.
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 was convicted by a special
court-martial of sodomy with another private and for being AWOL for 16
days.

3.  The applicant underwent a psychiatric examination in February 1967
which diagnosed him as having sexual perversion, homosexuality.  As a
result, he was discharged from the service under the provisions of Army
Regulation
635-89, for homosexuality.

4.  The official statements taken from two Soldiers on 10 January 1967
verified that the applicant had committed homosexual acts openly in public
view that would likely have had an adverse impact on discipline, good
order, or morale due to the close proximity of other Soldiers of the Armed
Forces based on current standards.

5.  There also is no apparent error, injustice, or inequity on which to
base recharacterization of his discharge or to change his narrative reason
for separation.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 May 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 May 1970.  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________  JP______  SF______  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                 |AR20060007824                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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