RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20070002840


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 her undesirable discharge be upgraded to
honorable.

2.  The applicant states that she has never been a homosexual.  However,
she was punished for the perception that she was.  She served honorably and
proudly performed her duties from 1954 until she was separated in March
1959.  She enlisted on 23 February 1954 and qualified as a company clerk.
She was promoted to specialist on 17 December 1955.  After completing her
initial enlistment of two years, she extended for an additional year.  She
had been serving in France, had become engaged, and the one-year extension
permitted her to remain in the same area as her fiancée.  She was honorably
discharged on 23 January 1957 and immediately reenlisted for three years.
She was sent to Headquarters, Fifth Army in Chicago, IL and was recommended
for promotion to E-5.  Her fiancée was sent to Governor’s Island in New
York City, NY.  Shortly thereafter, their engagement was broken.

3.  The applicant states that at her request she was sent back to Orleans,
France.  On arriving, her company commander, Captain F___, approached her
and asked if she would be willing to report certain suspicious conduct with
respect to the “Younger WACS” (Women’s Army Corps).  Captain F___ said it
was her intention to “get rid” of those “undesirables” and “clean up the
WAC Detachment.”  The applicant states she declined to spy on people.

4.  The applicant states that she later learned that a female Soldier, who
subsequently became a friend, had been classified as “undesirable” as she
had been caught with a male Soldier on a private beach in a partially
undressed condition.  They socialized together, going to movies, shooting
pool, doing laundry, maintaining their military gear, and other similar
activities.  They were never lovers.  They lived in the same barracks in
separate rooms.  On one occasion, they fell asleep on the applicant’s bed.
They were both in pajamas and at opposite ends.  One of the applicant’s
barracks mates came into the room and then left.  In retrospect, that was
probably the basis for the action taken against her.

5.  The applicant states that several days later her commander came to her
office and asked the applicant to accompany her to another office.  The
applicant’s friend was there, too.  They were met by four Criminal
Investigation Division (CID) agents and questioned separately.  She was
accused of having a “lesbian affair” with her friend, and called “a
security risk, dirty, and a disgrace” to the Women’s Army Corps.  She was
told they had been followed for a long time and they “had a lot in (sic)
us.”  While they acknowledged seeing the applicant and her friend with male
dates, they claimed that was a “cover up.”  The interview occurred over a
period of eight hours.  One of the agents sat directly in front of her with
his legs open and her knees inside his legs without actually touching.  It
was intimidating.  He told her she had to confess and they could wait as
“long as it took.”  A second agent told her all she had to do was sign a
blank paper which would subsequently include language admitting to an
affair without having to specify the details.  She repeatedly refused and
affirmed that she had not been involved in any lesbian relationship.

6.  The applicant states that after refusing to sign the statement one of
the agents told her they had sufficient documentation to court-martial her
and if the trial proceeded it could get quite “messy.”  After consenting to
a polygraph test, she was told the equipment was broken.  She was asked
whether she had slept with any men since her enlistment.  When she
indicated she had not, she was told that if she were “straight” she would
have slept with her fiancée and that statement was evidence she was a
lesbian.  They never asked if she was a virgin, and she does not know if
she would have been able to tell them that she had been repeatedly raped by
her father from the time she was five until age 14.

7.  The applicant states that they never advised her of the right to
consult with counsel nor did they specifically charge her with any specific
act of misconduct.  After about eight hours of questioning, she was shown a
statement signed by her friend.  At that point, she broke.  She had been
humiliated, she was extremely tired and intimidated, and she just wanted to
be finished with the matter.  She signed the confession and was discharged
with an undesirable characterization of service.  She was never referred
for evaluation, was never counseled about the consequences of an
undesirable discharge, and was never afforded the right to consult with
counsel.

8.  The applicant states that after her discharge she returned to New York
State.  She ultimately attained wage grade 24, which is one of the highest
grades for non-management personnel.  Most of the work involved government
contracts.  There was never any problem with security clearances and her
work was never questioned.  She took an early retirement in 1993.  With the
exception of the characterization of the discharge, she has led an
unblemished life.

9.  The applicant readily acknowledges that more than three years have
passed since her discharge.  She is an extremely private person who does
not readily discuss personal matters in public.  The discharge had such a
devastating emotional effect on her that it took more than 40 years before
she could discuss it with friends, let alone professionals in the area.
Her first application was submitted in 2003.  She does not have the DD Form
214 (Armed Forces of the United States Report of Transfer or Discharge) or
the [discharge] record of proceedings.   The Army Records Center was unable
to provide her with those documents.  After she left France, she was sent
to Fort Dix, NJ, where she recalls signing some paper although she does not
recall the nature of the paper.  She was given her DD Form 214, but it was
destroyed in a flood at her home in 1969.

10.  The applicant states that she respectfully refers the Board to the
facts set forth in Hoorwitz v. Secretary of the Army 320 F. Supp. 1050 (D.
Conn 1970) where the Board granted partial relief after almost 50 years.
In both his case and hers, the records no longer existed.  She also notes
the additional language of the Hoorwitz decision, to the effect that the
burden of preserving record evidence rests with the military services
rather than with personnel.

11.  The applicant states that she feels there were violations of
applicable law and regulation in her case.  CID personnel were required to
advise persons to be interviewed of specific charges considered against
them and to further advise that anything disclosed could be used against
them.  Persons requesting counsel had access to military counsel.  In
addition, the regulation then applicable clearly mandated a medical
evaluation prior to discharge for homosexuality.  She also believes that if
a medical condition was ruled out, the service member was entitled to
appear with counsel before a board of officers unless the board was waived.
 She was never given that opportunity.

12.  The applicant states that she was never advised of any rights, never
charged with any specific acts in violation of the Uniform Code of Military
Justice, never afforded the right to consult with counsel, never referred
for medical evaluation, never appeared before a board of officers, and
never knowingly waived any right afforded under the code or regulation.

13.  The applicant states that under current Department of Defense (DOD)
policy she would not have been furnished with the equivalent of an
undesirable discharge had she in fact had a homosexual orientation.  The
court noted, in Falk v. Secretary of the Army 870 F.2d941 (2d Cir. 1989),
that the Board upgraded an undesirable discharge to honorable
notwithstanding the voluntary admission of homosexual acts made as a
pretext for seeking discharge from the service.  She again emphasizes that
she is not a lesbian.  However, she suggests that even if one takes the
government’s proof as correct she would not have been given the equivalent
of an undesirable discharge had she been charged today and probably would
not even have been discharged, or would have been discharged with an
honorable characterization of service.

14.  The applicant provides a Stipulation and Order from the U. S. District
Court, Southern District of New York, dated 8 February 2007; a sworn
statement, dated 12 February 2007, from Jessie Ga___; four copies of an
unsworn, undated statement from Jessie Ga___; two copies of sworn
statement, dated 9 February 2007, from Carol Gr___; four copies of a 5
December 2003 email from Carol Gr___; a 2 December 2003 email from Carol
Gr___; a sworn statement, dated     8 February 2007, from Lois W___; three
copies of an unsworn letter, dated         4 December 2003, from Lois W___;
a 23 October 2006 certification from the      U. S. Army Litigation
Division, Office of The Staff Judge Advocate; an Administrative Record
Index with the attached listed documents from/to the Army Board for
Correction of Military Records (ABCMR); three civilian performance review
forms; two copies of a flyer advertising the 31st Annual Alden Art Show;
two copies of an undated notice from the Brothers of Mercy Nursing &
Rehabilitation Center; two copies of an advertisement for the benefit sale
of a painting by the applicant; a DD Form 214 for the period ending 23
January 1957; an Honorable Discharge Certificate dated 23 January 1957; and
a Recommendation for Promotion, dated 16 June 1958.

15.  The applicant also provided an extract from Title 10, section 654
(Policy concerning homosexuality in the armed forces); a Certification of
Military Service; a copy of U. S. Court of Appeals for the Second Circuit
case of Falk v. Secretary of the Army, 870F.2d 941, 1989 U. S. App; U. S.
Court of Appeals for the Second Circuit case of West and West v. The
Goodyear Tire & Rubber Company and The Budd Company; a copy of U. S.
District Court for the District of Connecticut case of Hoorwitz v.
Secretary of the Army, 329 F.Supp. 1050 1970 U. S. Dist; and a copy of U.
S. Court of Appeals, Second Circuit case of Hoorwitz v. Secretary of the
Army 445 F.2d 1407, 1971 U. S. App.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 March 1959.  The original application submitted in this case
was received in this office on 28 March 2003.

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 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 records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  This case is
being reviewed per a Stipulation and Order of Dismissal issued by the U. S.
District Court, Southern District of New York.  Military records available
were her DD Form 214 for the period ending 23 January 1957; her Honorable
Discharge Certificate, dated 23 January 1957; a recommendation for
promotion, and her separation orders, dated            3 March 1959.

4.  The applicant enlisted in the Women’s Army Corps on 23 February 1954.
She completed basic training and advanced individual training and was
awarded military occupational specialty 716.10 (Personnel Specialist).  She
was promoted to Specialist Three, E-4 on 17 December 1955.  On 23 January
1957, she was honorably discharged for the purpose of immediate
reenlistment.  On 24 January 1957, she reenlisted.  On 16 June 1958, she
was recommended for promotion to Specialist Two, E-5.

5.  On 5 March 1959, the applicant was discharged under the provisions of
Army Regulation 635-89, with a characterization of service of undesirable,
with a separation program number (SPN) of 257 (Unfitness, Homosexual Acts).

6.  The applicant provided a sworn statement from Jessie Ga___, who served
with the applicant in Orleans, France for almost two years.  Ms. Ga___
stated that at the time they served together the applicant was engaged.
Ms. Ga___ was married at the time and did not date; however, she often went
along with the applicant and her fiancée.  She never saw the applicant
engage in any act which would bring discredit upon herself or the service.
She was not present at the time of the incident leading to the applicant’s
discharge.  She first learned of the incident in 2001 or 2002.

7.  The applicant provided a sworn statement from Carol Gr___, who served
with the applicant in Orleans, France and was present at the time of the
investigation which led to the applicant’s discharge.  Ms. Gr___ stated it
had been well known that Captain F___ had been there to “clean house.
Captain F___ had been looking to rid the Service of homosexual female
Soldiers and others deemed “undesirable.”  To implement the policy, CID
agents followed female personnel everywhere.  They would periodically call
in female Soldiers at random for questioning, ask about the names of other
females in the unit, and attempt to identify female Soldiers considered
undesirable.

8.  Ms. Gr___ stated it was routine to deny requests for counsel, with the
person interrogated being advised it was sufficient for the company
commander to be present.  Once questioning was completed and there was a
confession, they were advised counsel was now unnecessary.  She states she
was aware of gay female Soldiers in the unit.  Some hid their sexual
orientation, performed their jobs, and avoided any situation that could
raise suspicion.  While she has no personal knowledge as to the applicant’s
sexual orientation, she can say that the applicant was identified as
undesirable on the basis of nothing more than suspicion and forced out of
the Service on a coerced confession.  Ms. Gr___ states she can also
appreciate the applicant’ statement that as a result of the devastation
[resulting from her discharge] she was unable to verbalize her feelings and
therefore delayed in seeking relief from the Board.

9.  The applicant provided a sworn statement from Lois W___, who served in
the same platoon and lived in the same barracks as the applicant in
Orleans, France. Ms. W___ stated that during the time they served together,
both off and on duty, she never saw the applicant engage in any conduct
which could be considered adverse, derogatory, or otherwise reflect
discredit upon the Armed Forces.  She had the reputation of being a good
Soldier.  She knows the applicant did not have legal counsel during the
investigation.  They were all young at the time and most of them were not
aware of their rights.

10.  Army Regulation 635-89, in effect at the time, prescribed criteria and
procedures for the investigation of homosexual personnel and their
discharge from the Army.  Homosexuals were divided into three classes.
Class I included those cases which involved an invasion of the rights of
another person as where the homosexual act is accompanied by assault or
coercion or where cooperation or consent was obtained through fraud; Class
II included those cases wherein personnel subject to court-martial
jurisdiction engaged in one or more provable homosexual acts not within the
purview of Class I; Class III included cases of overt, confirmed
homosexuals who did not engage in any homosexual acts since entry into
military service and individuals who possessed homosexual tendencies to
such a degree as to render them unsuitable for military service.
Individuals who admitted to being confirmed homosexuals or admitted
committing one or more overt acts of homosexuality while in service would
normally be separated under other than honorable conditions if, because of
the improbability of successful trial, they were separated
administratively.

11.  Army Regulation 635-200, chapter 15, prescribes the current criteria
and procedures for the investigation of homosexual personnel and their
discharge from the Army.  When the sole basis for separation is
homosexuality, a discharge under other than honorable conditions may be
issued only if such characterization is otherwise warranted 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;
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 service.

12.  Title 10, U. S. Code, section 654 (Policy concerning homosexuality in
the armed forces), subsection 654(b) states a member of the armed forces
shall be separated from the armed forces under regulations prescribed by
the Secretary of Defense if one or more of the following findings is made
and approved in accordance with procedures set forth in such regulations:

     (1) that the member has engaged in, attempted to engage in, or
solicited another to engage in a homosexual act or acts unless there are
further findings that the member has demonstrated that --

            (A) such conduct is a departure from the member’s usual and
customary behavior; (B) such conduct, under all the circumstances, is
unlikely to recur; (C) such conduct was not accomplished by use of force,
coercion, or intimidation; (D) under the particular circumstances of the
case, the member’s continued presence in the armed forces is consistent
with the interests of the armed forces in proper discipline, good order,
and morale; and (E) the member does not have a propensity or intent to
engage in homosexual acts;

     (2) that the member has stated that he or she is a homosexual or
bisexual unless there is a further finding that the member has demonstrated
that he or she is not a person who engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in homosexual acts; and

     (3) that the member has married or attempted to marry a person known
to be of the same biological sex.

13.  On 28 February 1994, DOD instituted its current policy on homosexual
conduct in the military.  In an April 1998 Report to the Secretary of
Defense, Review of the Effectiveness of the Application and Enforcement of
the Department’s Policy on Homosexual Conduct in the Military, prepared by
the Office of the Under Secretary of Defense (Personnel and Readiness), it
was noted that DOD’s policy provided that sexual orientation is a personal
and private matter that is not a bar to military service unless manifested
by homosexual conduct.  Applicants for military service could no longer be
asked about their sexual orientation.  The services could not initiate
investigations solely to determine a member’s sexual orientation unless
credible information was received that a service member has engaged in
homosexual conduct.

14.  The Report concluded that many of the criticisms made about improper
initiation of investigations reflected a misunderstanding of DOD’s policy.
It noted that, in practice, credible information had sometimes been
provided to commanders in ways that service members might not have expected
would have occurred.  For example, current or former partners, roommates,
or unrelated third parties sometimes came forward on their own to report
information or evidence of homosexual conduct to commanders against the
wishes of the service member in question.  Photographs or written
communications that evidenced homosexual conduct sometimes had been
revealed to civilians who then brought this evidence to the attention of a
commander, without any inquiry having been conducted by the commander.
Credible information had also been incidentally discovered in the course of
proper, entirely unrelated criminal or disciplinary investigations of the
member or of others.  It is not a violation of DOD policy for a commander
to initiate an investigation when information has been reported in any of
these circumstances provided that the information received is credible.
Indeed, because federal law requires that those who engage in homosexual
conduct must be discharged from the military, commanders are obligated to
investigate whenever they receive credible evidence of homosexual conduct.


15.  The applicant provided a copy of the U. S. Court of Appeals for the
Second Circuit decision in Falk v. Secretary of the Army 870 F.2d 941 (2d
Cir. 1989).
In this case, Falk enlisted in the U. S. Army Reserve at age 22.  Twelve
weeks into active duty training on 2 July 1964, he told his commander he
participated in two homosexual encounters while on leave at a hotel in
Brooklyn Heights, New York.  Falk was subsequently discharged for
homosexuality with an undesirable discharge.  In 1977, he applied to the
Army Discharge Review Board (ADRB) to upgrade his discharge.  He had
contended his acts were an aberration, and the ADRB upgraded his discharge
to general.  In 1978, the ADRB further upgraded his discharge to honorable.
 He then requested that the reason for his discharge be changed, and the
ADRB transferred his case to the ABCMR.  In 1979, the ABCMR denied his
request.  The applicant reapplied to the ABCMR in 1981, now contending he
had only one homosexual encounter and he exaggerated about his having
homosexual tendencies because he wanted very much to be out of the Army.
The ABCMR again denied his request.  He then filed court proceedings,
charging the ABCMR’s decisions were arbitrary and capricious.  The U. S.
District Court for the Southern District of New York ruled in favor of the
Army on a number of grounds.  Falk then appealed.  The U. S. Court of
Appeals for the Second Circuit ruled in favor of the Government.

16.  The applicant provided a copy of U. S. District Court for the District
of Connecticut case of Hoorwitz v. Secretary of the Army, 329 F.Supp. 1050
1970 U. S. Dist; and a copy of U. S. Court of Appeals, Second Circuit case
of Hoorwitz v. Secretary of the Army, 445 F.2d 1407, 1971 U. S. App.

17.  The U. S. District Court for the District of Connecticut decision
stated in part, “Despite the paucity of official records in this case,
going back over 50 years, the parties agree on the following facts:

      On April 29, 1914, at the age of 17, plaintiff enlisted in the United
      States Regular Army for seven years.  While in the service he was
      twice convicted by courts martial – once in July of 1915 by a summary
      court martial and again in December of 1916 by a special court
      martial.  Promptly after serving a sentence of …he was discharged from
      the Army on May 30, 1917.  He received a so-called “blue discharge”….”


There was also apparently evidence to show he had appeared before a board
of three officers who determined he should be discharged.


18.  In 1965, Hoorwitz applied to the ABCMR to upgrade his discharge.  The
ABCMR denied his request in 1966, although the ABCMR did correct his record
by deleting from his record any reference to drug addiction or alcoholism.
Hoorwitz then filed court proceedings to compel the Army to correct his
records to show he was honorably discharged.

19.  On 8 October 1970, the U. S. District Court for the District of
Connecticut noted the ABCMR specifically concluded that Hoorwitz’s
unsupported statements of events which occurred 50 years before were
“lacking in conviction and do not offer an acceptable basis for overcoming
a reasonable presumption of regularity of the records.”  The court found
nothing to support a claim that the Secretary of the Army, acting through
the ABCMR, acted arbitrarily, capriciously, or illegally in refusing to
change the records so as to reflect that the plaintiff was honorably
discharged.

20.  The court also noted that it did not rely upon laches for its
decision, stating:

      “The fact that a specific Board has been created by congress for the
      purpose of correcting military records would seem to indicate
      congressional intent that the burden of preserving evidence relevant
      to the status of military personnel ought to rest on the record-
      keeping duty of the military services rather than on the personnel.
      Furthermore, the government has the facilities for searching out
      relevant records.  If record evidence was lost in this case it does
      not appear that its loss was due to any delay by the plaintiff which
      would justify charging him with laches.

21.  The court entered judgment for the defendant.  On 4 June 1971, the U.
S. Court of Appeals, Second Circuit affirmed the granting of summary
judgment in favor of the Government.

22.  The doctrine of laches is defined by Black’s Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that her commander was on a “witch hunt”
for female Soldiers who were homosexual or otherwise undesirable; that she
was never advised of any rights; that she was never charged with any
specific acts in violation of the Uniform Code of Military Justice; that
she was never afforded the right to consult with counsel; that she was
never referred for medical evaluation; that she never appeared before a
board of officers; and that she never knowingly waived any right afforded
under the code or regulation have been carefully considered.

2.  The statements of support from the three Soldiers who served with the
applicant during the period in question have been carefully considered.

3.  Unfortunately, without the applicant’s records and particularly her
discharge packet (which would have been prepared even if a board of
officers had not been held) the presumption of regularity must be made.

4.  The applicant’s case is not that similar to the case of Hoorwitz v.
Secretary of the Army.  The applicant contended that in both his case and
hers, the records no longer existed.  However, although the court noted in
Hoorwitz v. Secretary of the Army that there was a “paucity of official
records,” there appears to have been sufficient records for both parties to
agree Hoorwitz’s records contained evidence of two courts-martial and a
board of officers.  It appears Hoorwitz had sufficient records to reflect a
drug addiction or alcohol problem and evidently sufficient evidence to show
his records should not have reflected a drug addiction or alcohol problem.


5.  In the applicant’s case, only four documents exist, and two of those
documents were from her initial enlistment.  One document from her last
enlistment was a recommendation for promotion dated 9 months prior to her
separation.  The other document was her separation order.  There are no
records available to assist the Board in determining whether the
applicant’s and her fellow Soldiers’ statements are sufficient to overcome
the presumption of regularity.  When there are no records against which to
compare those statements, the presumption must be made that the entire
separation process was accomplished in compliance with the governing
statutes and regulations.

6.  The applicant also requested the Board to consider the additional
language of the Hoorwitz decision, to the effect that the burden of
preserving record evidence rests with the military services rather than
with personnel.

7.  The court’s words have been carefully considered.  However, the
original decision in Hoorwitz was made on 8 October 1970.  The second
decision was made on 4 June 1971.  The National Personnel Records Center
fire occurred in 1973.  In 1970 or 1971, the courts probably could not have
conceived of a man-made accident or an Act of God that would cause such a
disaster as the 1973 fire, in which about 18 million servicemember’s
records were lost or destroyed by either the fire itself or by water
damage.  With the records-drying operation that was immediately begun, it
is not uncommon for only one or two documents of a member’s records to be
salvaged while the rest of the records were a total loss.

8.  The applicant’s reasons (that she is an extremely private person who
does not readily discuss personal matters in public and that the discharge
had such a devastating emotional effect on her that it took more than 40
years before she could discuss it) for waiting more than 40 years to
request an upgrade of her discharge with either the ADRB or the ABCMR are
understandable.  However, the lapse of 40 years in her case has allowed the
1973 fire to intervene.  An arbitrary ruling in her favor, without knowing
what her records would have shown, would cause prejudice to the Government.
 Had she applied to the ABCMR even by 1972, 13 years after her separation
and even though that date would have been beyond the ABCMR’s statute of
limitations, an equitable decision could possibly have been made in her
case.  However, since it is now 30 years after the fire, the doctrine of
laches is invoked in her case.

9.  The applicant further contended that under current DOD policy she would
not have been furnished with the equivalent of an undesirable discharge had
she in fact had a homosexual orientation.  She cites the Falk v. Secretary
of the Army case, in which the Board (actually the ADRB, not the ABCMR)
upgraded an undesirable discharge to honorable notwithstanding the
voluntary admission by Falk of homosexual acts made as a pretext for
seeking discharge.

10.  The applicant’s case and Falk’s case are not similar.  It appears that
all of the military records in Falk’s case were available.  Further, Falk’s
homosexual encounter(s) occurred off a military installation.  The
applicant’s alleged homosexual encounter occurred in the Army barracks.
Under current standards, the circumstances (in a 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 applicant’s alleged homosexual encounter would have
warranted a discharge under other than honorable conditions (at the time,
an undesirable discharge).

11.  In addition, the applicant acknowledged that it was probably her
barracks mate walking into the room and seeing the alleged compromising
position the applicant was in that led to the investigation.  Therefore,
“even if one takes the government’s proof as correct,” she could have been
discharged today and she could have been given the equivalent of an
undesirable discharge.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 March 1959; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on            4 March 1962.  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

__kan___  __dkh___  __lmd___  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 A. Newman__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002840                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070320                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19590305                                |
|DISCHARGE AUTHORITY     |AR 635-89                               |
|DISCHARGE REASON        |A46.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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