RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010880 


	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. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

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 that his under other than honorable conditions discharge be changed to honorable or general, under honorable conditions, and that his narrative reason for discharge be changed.

2.  The applicant states, in effect, that he had mental confusion and trouble with alcohol, and that he may have done some things while under the influence of alcohol.  He states that he did not receive any help for his problems and, if the allegations [of his misconduct] are true, he apologizes for his actions.  He is still receiving psychiatric help for his mental confusion; however, he has been sober for 7 years now.  Since he did not receive assistance for his alcoholism or his mental confusion from the Army, he believes that the decision in his case should be changed.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 September 1984, the date of his discharge from the Army.  The application submitted in this case is dated 25 July 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.  On 22 July 1982, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years.  On 25 May 1983, he was discharged from the DEP and enlisted in the Regular Army for four years.  He completed training requirements and was awarded military occupational specialty 91E (Dental Specialist). 



4.  The evidence of record shows he attained the rank of private/E-2 and received the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with M-16 Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

5.  On 1 March 1984, the applicant became despondent and according to at least four witnesses, threatened to take his own life.  The applicant stated that he was fearful that a sexual partner had contracted AIDS.  He was transported to the hospital for evaluation and returned to duty when hospital personnel determined that he was not suicidal.  

6.  On 18 April 1984, the applicant apparently called the Officer-in-Charge (OIC) of Dental Clinic 2 (a colonel) and reported that his (the applicant's) roommate was not "being very nice to him and that he was going to sleep in the dayroom."  It was the OIC's impression that the applicant had been drinking.  On investigation, the OIC discovered that the applicant's roommate had locked the applicant and a male friend out of the room after he (the roommate) had discovered them dancing, kissing, and in bed together.

7.  On 3 May 1984, the applicant was seen as a self-referral to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was screened and recommended for enrollment in Track II.

8.  On 29 May 1984, a Criminal Investigation Division Final Report found sufficient evidence to title the applicant with sodomy, indecent acts with another, and false swearing.  The applicant rendered a sworn statement in which he stated that the acts of sodomy between him and another male Soldier were consensual.  The investigation revealed that the applicant engaged in consensual sodomy with another male in the barracks on 3 May and 25 May 1984.

9.  On 11 June 1984, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 15 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of engaging, attempting to engage in/soliciting another to engage in a homosexual act.  The commander indicated that the specific reasons for his recommendation were the applicant's statements that he was a homosexual, his clear record of disregard for military discipline, and the adverse impact it had on the good order, discipline, and morale of the organization.  

10.  The unit commander advised the applicant that the least favorable characterization of service he could receive was General under other than honorable conditions (emphasis added).

11.  On 13 June 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for making a false official statement, to wit:  that he did not commit sodomy with another, by his own consent.  His punishment consisted of a reduction to private/E-1 and a forfeiture of one half of one month's pay for two months. 

12.  On 16 July 1984, the applicant's unit commander recommended that he be discharged by reason of homosexuality.  He indicated that the applicant's rehabilitative efforts had included enrollment in ADAPCP and mental hygiene counseling, to include counseling and referrals to outside agencies.  However, the applicant's duty performance remained unsatisfactory and his apathetic attitude was a disruptive influence within the unit.

13.  On 26 July 1984, a Bar to Reenlistment was imposed against the applicant based on the above NJP.  The bar also noted the applicant was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program.  

14.  On 13 August 1984, the applicant consulted with legal counsel, waived consideration of his case by a board of officers, and did not submit a statement in his own behalf.  However, the following acknowledgement was noted:  "I understand that I may expect to encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions (emphasis added) is issued to me.  I further understand that, as a result of issuance of a discharge under other than honorable conditions, I may be ineligible for many or all of the benefits as a veteran under both Federal and State laws, and that I may expect to encounter substantial prejudice in civilian life."

15.  On 7 September 1984, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  

16.  On 17 September 1984, the applicant was discharged by reason of engaging, attempting to engage in/soliciting another to engage in a homosexual act after completing 1 year, 3 months, and 23 days of active military service.


17.  A review of the applicant's service medical records shows that on 2 March 1984, he was transported to the hospital and evaluated for an acute situational reaction.  While at the hospital, he became extremely agitated, angry, used abusive language and refused to answer questions.  Alcohol was noted on his breath.  

18.  On 29 May 1984, the applicant received inpatient (hospital) treatment for an unspecified social reason.  On 5 August and 6 September 1984, the applicant received inpatient treatment for alcohol intoxication.  On 20 August 1984, the applicant went on sick call complaining of his emotional upsets and an inability to eat or sleep.  He was hospitalized until 22 August 1984 and received inpatient treatment for anorexia, insomnia, and maladjustment.  

19.  On his enlistment physical, the applicant noted that he had been previously hospitalized for a mental condition three years prior to his enlistment.  He stated that his brother had drowned and he was having visions of his brother.  The examiner noted that the applicant had an apparent situational reaction.

20.  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.

21.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  Army regulation states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, 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 in circumstances that violate customary military superior subordinate relationships; 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 overall record of service.


22.  Army Regulation 635-200, paragraph 3-7a, 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.

23.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The service of an individual who engages in homosexual conduct in a location subject to military control may be characterized as under other than honorable conditions if the conduct has, or is likely to have, an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces.  Because the applicant's relationship with another male Soldier transpired in the barracks and was observed by other Soldiers, his conduct was considered to have adversely impacted on discipline, good order, and morale of the unit.

2.  The Board noted that the unit used confusing verbiage in the applicant's discharge packet.  His unit commander advised him that he was being recommended for a "general under other than honorable conditions discharge."  In the election of rights, the applicant was notified that he could receive either a "general under other than honorable conditions" or an "under other than honorable conditions" discharge.  The Army does not have a characterization of service of "general under other than honorable conditions."  Although the applicant waived his right to a board of officers, it is uncertain whether the applicant was constructively notified that he was actually being considered for an under other than honorable conditions discharge and his clear entitlement to a board of officers under the provisions of Chapter 15, no matter what characterization of service was recommended.  It is possible the applicant believed he was receiving a general, under honorable conditions discharge, and based upon that assumption, waived his right to appear before a board of officers. 

3.  The applicant had at least four hospitalizations during his short time in the Army for alcohol intoxication, anorexia, insomnia, an acute situational reaction, and social maladjustment.  He self-enrolled in Track II of ADAPCP due to his abuse of alcohol.  Inasmuch as he also had a prior hospitalization for a mental condition and/or situational reaction, his prospects of satisfactorily completing his enlistment contract were considerably diminished.  Indeed, the applicant states that he still receives treatment for a mental condition, although he has been sober for the past 7 years.

4.  Given the above mitigating evidence, and as a matter of equity, it would be in the interests of justice to change the applicant's characterization of service to general, under honorable conditions.  The applicant's reason for discharge is fully supported by the evidence of record and there is no basis upon which to change it.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 September 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
16 September 1987.  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 

__mdm___  __jtm___  __qas___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was discharged from the Regular Army on 17 September 1984 with a general, under honorable conditions discharge.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an honorable discharge and a change in the narrative reason for separation.



							Mark D. Manning
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010880
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19840917
DISCHARGE AUTHORITY
AR 635-200, Chap 15
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.5900
2.

3.

4.

5.

6.