RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
	

	BOARD DATE:	29 March 2007  
	DOCKET NUMBER:  AR20060013211 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr.  Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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 general discharge (under honorable conditions) be upgraded to honorable.

2.  The applicant states, in effect, that he was informed after 2 years of his discharge, he could have it upgraded. 

3.  The applicant provides no additional documentation in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 February 1987, the date of his discharge.  The application submitted in this case is dated 6 September 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 record shows he enlisted in the Regular Army for 3 years on 23 August 1979, for training in military occupational specialty (MOS), 76D, Material Supply Specialist.  He was advanced to pay grade E-4 on an unknown date.  He was honorably discharged for the purpose of reenlistment on 25 February 1982. 

4.  The applicant reenlisted on 26 February 1982, in pay grade E-4, for 3 years.  He was promoted to sergeant (SGT/E-5) effective 3 May 1984.  He was honorably discharged for the purpose of reenlistment on 29 Jan 1985.  He reenlisted on 30 January 1985, in grade E-5, for 6 years.  






5.  Between 7 May 1986 and 17 February 1987, he received nonjudicial punishment on three occasions under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in deportment towards an NCO, for failure to go to his appointed place of duty, and for sodomy with another Soldier.  His punishments consisted of a reduction to pay grade E-4, forfeitures of pay, and restriction and extra duties.

6.  The applicant underwent a mental status evaluation on 4 February 1987.  His mental status evaluation revealed a fully oriented alert individual, whose behavior was normal.  His mood or affect was unremarkable, thinking process was clear, and his thought content was normal.  He possessed sufficient mental capacity and was mentally responsible to understand and participate in proceedings.  

7.  On 23 February 1987, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200,
chapter 15.   He was informed that, if his separation was approved, the least favorable characterization of service he could receive was an under other than honorable conditions discharge.  He based his recommendation on the applicant’s pattern of misconduct, even after normal counseling, which rendered him unqualified for further service.

8.  On that same day, the commander submitted his recommendation to separate the applicant under the provisions of Army Regulation 635-200, chapter 15.  The commander indicated that his failure was evidenced by the existence of the following condition, homosexual conduct, or a demonstrated tendency to engage in homosexual conduct.  He recommended that the applicant receive a general discharge, under honorable conditions.  His discharge was based on the applicant admitting to have engaged in homosexual acts with another Soldier. 

9.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf. 

10.  On 24 February 1987, the separation authority approved the recommendation for the applicant’s discharge and directed that he be furnished a general discharge certificate.  The applicant was discharged on 26 February 1987, in the pay grade of E-4.  He had a total of 7 years, 6 months, and 4 days of creditable service. 

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15, in effect at that time, of that regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.
Paragraph 15-3a provides, in pertinent part, that the basis for separation may include preservice, prior service, or current service conduct or statements.  A Soldier will be separated under this chapter if a finding is made that the Soldier has engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there are approved findings.

13.  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, 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.

14.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 26 February 1987 under the provisions of paragraph 15-3a of Army Regulation 635-200.  Item 18 (Remarks) of the DD Form 214 shows, in pertinent part, that the applicant was separated from the service on temporary records and his affidavit.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3a, for engaging in, attempting to engage in, or soliciting another to engage in homosexual acts(s), was administratively correct and in conformance with applicable regulations.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.




4.  The applicant contends, in effect, that his general discharge, (under honorable conditions) should be upgraded to an honorable discharge.

5.  The evidence of record shows that, the applicant enlisted in the Regular Army on active duty on 23 August 1979, and his character of service was honorable during his first enlistment when he completed 2 years, 6 months, and 3 days active service before he was discharged for immediate reenlistment.  The evidence of record also shows that his character of service was honorable during the period of his first reenlistment of 16 February 1982 when he completed 2 years, 11 months, and 4 days active service before he was again discharged for immediate reenlistment.  Unfortunately, these two periods of honorable active service are not documented on the applicant's discharge document because he was discharged on temporary records and his affidavit.  It should be noted these two periods of honorable active service do not mitigate the applicant's character of service during the period of his last reenlistment (i.e., from 30 January 1985 through 26 February 1987).

6.  Contrary to the applicant's assertions that he was informed that after 2 years of his discharge, he could have an upgrade.  The Army does not have, nor has it ever had, a policy to automatically upgrading discharges after 2 years.  Soldiers are advised at the place of their separation that it is their responsibility to request an upgrade it they receive less than an honorable discharge.  

7.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

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

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 February 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 February 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

____e___  __MJF___  __LB ___  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.




______Lester Echols_______
          CHAIRPERSON



INDEX

CASE ID
AR20060013211
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19870226
DISCHARGE AUTHORITY
AR 635-200, chapter 15
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.