RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070000823 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Susan Powers

Member

Mr. Edward Montgomery

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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was not aware he was a homosexual until after entering the Army.  After realizing these particular desires, he reported it and suffered tremendous humiliation from his commander and fellow Soldiers.  He states that he accepted the discharge not knowing that the discharge was not honorable.  He also states that being homosexual is not against the law or military rules.    

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 April 1967.  The application submitted in this case is dated 10 January 2007.

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 on 18 May 1966 for a period of 3 years.  He successfully completed basic combat training and on-the-job training in military occupational specialty 70A (clerk).

4.  On 25 January 1967, the applicant made a sworn statement admitting to engaging in consensual sodomy with two Soldiers in the vicinity of their billets.  

5.  On 30 January 1967, the applicant underwent a psychiatric evaluation and was diagnosed with homosexuality.  This medical record states, in pertinent part, that “He [the applicant] states that he has always had homosexual tendencies but did not participate in overt homosexual activities until after his entrance into the service.”  The psychiatrist strongly recommended that the applicant be administratively separated under the provisions of Army Regulation 635-89.   
6.  On 7 February 1967, the applicant’s acting platoon leader made a statement and indicated that the applicant was unwilling to adjust to military life.  On 
8 February 1967, the applicant’s squad leader made a statement and indicated that the applicant’s physical condition was poor and that he had not shown any desire to adjust to military life.  

7.  On 11 February 1967, the applicant was notified of his pending separation under the provisions of Army Regulation 635-89 for homosexuality.  He was also advised that the discharge proposed in this action was an undesirable discharge under which he would forfeit most of the rights and privileges available to veterans under both state and federal statutes.

8.  On 17 March 1967, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and waived representation by counsel.  He also elected not to submit a statement on his own behalf. 
 
9.  The separation authority approved the recommendation and directed that the applicant be furnished an undesirable discharge.

10.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he had unsatisfactory conduct and efficiency ratings during the period 14 December 1966 to 11 April 1967.

11.  On 13 April 1967, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-89 for homosexuality.  He had served 10 months and 26 days of total active service.  

12.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

13.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  

14.  Army Regulation 635-200 is the current regulation that sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 5 (Discharge for Homosexual Conduct) of Army Regulation 635-200 states that, when the sole basis for separation is homosexual conduct, a discharge under other than honorable conditions may be issued only if there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act:  (1) by using force, coercion, or intimidation; (2) with a person under 16 years of age; (3) with a subordinate in circumstances that violate customary military superior-subordinate relationships; (4) openly in public view; (5) for compensation; (6) aboard a military vessel or aircraft; or (7) in another location subject to military control under aggravating conditions noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.  This regulation also states that, in all other cases, the type of discharge will reflect the character of the Soldier’s service.

15.  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 evidence of record does not support the applicant’s contention that he was not aware he was a homosexual until after entering the Army.  Contemporaneous medical evidence of record shows the applicant reported to the psychiatrist that “he has always had homosexual tendencies.”

2.  The evidence of record does not support the applicant’s contention that he accepted the discharge not knowing that the discharge was not honorable.  Evidence of record shows that on 11 February 1967 he was advised that the proposed discharge was an undesirable discharge. 

3.  Since the applicant had unsatisfactory conduct and efficiency ratings during the period 14 December 1966 to 11 April 1967, his record of service was not satisfactory.  In addition, he admitted to committing a homosexual act in the vicinity of his billets, which could reasonably be construed as an aggravating factor (i.e., in a location subject to military control that could have an impact on good order and discipline).  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  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.  
 
5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 13 April 1967; therefore, the time for the applicant to file a request for correction of any injustice expired on 12 April 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

KN_____  __SP____  __EM___  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.




___Kathleen Newman___
          CHAIRPERSON




INDEX

CASE ID
AR20070000823
SUFFIX

RECON

DATE BOARDED
20070710
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19670413
DISCHARGE AUTHORITY
AR 635-89  
DISCHARGE REASON
Homosexuality
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.