RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013700 


	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. Kenneth L. Wright 

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine Fields

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 be upgraded to honorable. 

2.  The applicant states, in effect, that he outted himself as a young homosexual man in the Army Reserve and the pressure of service was stressful to him.  The laws have changed in recent years concerning homosexuals. 

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 2 July 1975, the date of his discharge.  The application submitted in this case is dated 17 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 military record shows he enlisted in the U. S. Army Reserve (USAR) on 16 March 1970, for 6 years, with an established expiration of term of service (ETS) of 15 March 1976.  He was ordered to initial active duty for training (IADT) on 24 June 1970.  The applicant successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 71B, Clerk Typist.  He was promoted to pay grade E-2 on 16 July 1970.

4.  The applicant continued to serve until he was released from IADT on 23 October 1970.  He was transferred to a troop program unit (TPU), of the USAR.  He was promoted to pay grade E-4 on 1 June 1971.



5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his separation orders, dated 2 July 1975, which show that on 2 July 1975, he was discharged under the provisions of Army Regulation 135-175, for homosexuality.  He was furnished a general discharge, in the pay grade of E-4.  His orders indicate that he was not recommended for re-enlistment.

6.  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.  

7.  Chapter 6, of Army Regulation 135-178, in effect at that time, prescribes the authority, criteria, and procedures for the disposition of enlisted members of the USAR who are homosexuals, or who engage in homosexual acts, or are alleged to have engaged in such acts.  It states that personnel who voluntarily engaged in homosexual acts, irrespective of sex, will not be permitted to serve in the Armed Forces in any capacity, and their prompt separation is mandatory.  Members who engage in homosexual acts, even though they are not homosexuals within the meaning of this chapter, are considered to be unfit for military service because their presence impairs the morale and discipline of the Army.

8.  Chapter 10, of Army Regulation 135-178, currently in effect, pertains to homosexual conduct.  It states that homosexual conduct is grounds for discharge from the USAR.  This includes pre-service, prior service, or current-service homosexual conduct.  The term "homosexual conduct" includes homosexual acts, or a homosexual marriage or attempted marriage.  A statement by a Soldier that demonstrates propensity or intent to engage in homosexual acts is grounds for discharge not because it reflects the Soldier's sexual orientation, but because the statement indicates a likelihood that the Soldier engages in or will engage in homosexual acts.  It states that 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 person to engage in homosexual act unless there are approved findings.






9.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  However, his separation orders identify the reason for his discharge and the characterization of his service; therefore, Government regularity is presumed in the discharge process.

3.  Careful consideration has been given to the applicant's contention that he outted himself as a young homosexual man in the Army Reserve and the pressure of service was very stressful to him.  Based on the limited evidence available in his military service records, it is unknown what actually happened in the applicant's case due to the unavailability of his discharge proceedings.

4.  The applicant stated that the laws had changed in recent years concerning homosexual's rights; however, current regulation in effect, included pre-service, prior service, or current service homosexual conduct.  Soldiers would be separated if a finding was made that they engaged in, attempted to engage in, or solicited another person to engage in homosexual act unless there were approved findings.

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.  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.   There is insufficient basis to support his request for an upgrade of his general discharged.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 July 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 July 1978.  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

__KLW__  __LD____  __E.F.___  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.




___    Kenneth Wright___________
          CHAIRPERSON




INDEX

CASE ID
AR20060013700
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19750702
DISCHARGE AUTHORITY
AR 135-178, chapter 6
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.