RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060017345 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 correction of her military records to show the narrative reason for her discharge as "at the convenience of the military."  The applicant also requests to personally appear before the Board.

2.  The applicant states, in effect, that she wants her narrative reason for separation changed from "admission of homosexuality/bisexuality" to "for the convenience of the military."  She states that she was precluded from completing her 24 months of active duty through no fault of her own.  There were a series of incidents in which the United States Army misrepresented circumstances to her, culminating in her expedited discharge which she did not choose or want.

3.  The applicant provides copies of her Certificate of Release or Discharge from Active Duty (DD Form 214), interview sheet, statements for enlistment, letter from the United States Military Academy Preparatory School, letters of intent to revoke her security clearance, and a letter of appreciation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 April 1983, the date of her discharge.  The application submitted in this case is dated 30 November 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 14 September 1982, the applicant enlisted in the Regular Army for 
3 years.  She completed her initial training and was awarded military occupational specialty 94B1O (Food Service Specialist).

4.  On 4 October 1982, the applicant made a sworn statement attesting to the fact that she had a homosexual relationship from approximately November 1974 to August 1975. 


5.  On 8 March 1983, a mental status evaluation found that the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.  The applicant was mentally responsible.  She was able to distinguish right from wrong and to adhere to the right.

6.  On 11 March 1983 a medical examination found her to be qualified for separation.

7.  On 5 April 1983, the applicant’s commander recommended that she be separated from the service for homosexuality under the provisions of Army Regulation 635-200, paragraph 15-3b.

8.  On 8 April 1983, the applicant consulted with counsel, and elected to make a statement in her own behalf and to be represented by military counsel.  Her statement is not available in the record.

9.  On 22 April 1983, the appropriate authority approved the recommendation for discharge and directed that she be issued an Honorable Discharge Certificate, under the provisions of paragraph 15-3b, Army Regulation 625-200, for homosexuality.   

10.  Accordingly, she was honorably discharged on 26 April 1983.  The narrative reason for separation was admission of homosexuality/bisexuality.  She had completed 7 months and 13 days of creditable active service.

11.  Army Regulation 635-200 (Enlisted Personnel) provides, in pertinent part, that homosexuality is incompatible with military service.  The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.  Paragraph 15-3 provides the criteria for separation.  It states that the basis for separation may include pre-service, prior service, or current service conduct or statements.  A member will be separated if the member has stated that he or she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual. 





DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence of record to fully consider this case, a formal hearing is not warranted.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

4.  The narrative reason for her separation is in agreement with the facts of the case. 

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 April 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
25 April 1986.  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

__JRS __  ___LDS__  __CD___  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.




___   Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060017345
SUFFIX

RECON
 
DATE BOARDED
20070605
TYPE OF DISCHARGE

DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200 
2.

3.

4.

5.

6.