RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070006378 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Mr. John T. Meixell

Member

Mr. David W. Tucker

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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that this upgrade should be based on his good service in France during 1956.  In effect, he states that he has been punished for 50 years, which in and of itself justifies an upgrade.

3.  The applicant provides copies of his Report of Separation from the Armed Forces of the United States (DD Form 214) for the periods ending on 24 March 1956 and 10 January 1952; and his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) for the period ending on 
31 August 1945. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 23 May 1941, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty 060 (Cook).  He served in the Asian Pacific Theater Operations (APTO).  He attained the rank of Technician fifth grade and was honorably discharged on 31 August 1945.

3.  On 8 January 1948, the applicant enlisted in the Regular Army for 3 years.  He was awarded military occupational specialty 3060 (Cook).  He attained the rank of sergeant and was honorably discharged on 10 January 1952 for the purpose of immediate reenlistment.  He had completed 4 years and 3 days of creditable active duty during this period of service.


4.  On 11 January 1952, the applicant reenlisted in the Regular Army for 6 years.

5.  On 31 August 1953, the applicant’s commander stated in a letter to The Adjutant General, United States Army, that the applicant was the subject of a criminal investigation report that identified him as a Class III homosexual.  The commander further stated that the applicant had been a member of this organization for more than a year and under the commander’s direct supervision for more than 2 months.  During this time he had performed his duties of first cook in an excellent manner and to his knowledge no one in the organization knew that he had homosexual tendencies.  Due to his excellent record of service, the commander believed that the applicant should not be eliminated from the service at that time.  On this same day, the applicant elected not to make a statement. 

6.  On 16 September 1953, The Adjutant General decided not to discharge the applicant.

7.  On 6 December 1955, charges were preferred under the Uniform Code of Military Justice for violation of Article 125, for sodomy with another Soldier. 

8.  On 22 December 1955, the applicant signed a statement accepting an Undesirable Discharge for the good of the service in lieu of trial by General Court-Martial.  He stated that he understood that his Undesirable Discharge from the United States Army would be under conditions other than honorable; that he may be deprived of many rights as a veteran under both Federal and State legislature; and that he may expect to encounter substantial prejudice in civilian life. 

9.  Army Regulation 635-89, in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts.  Individuals involved in isolated episodes stemming solely from immaturity, curiosity, or intoxication were excluded, but were to be eliminated under other regulations if appropriate.  Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated Class I.  Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated Class II.  Class III applied to individuals who had committed only pre-service homosexual acts.   An undesirable discharge was normally considered appropriate for Class II cases.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued.  A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service or if an individual had served for an extended period of time and the separation authority determined that such action was in the best interests of the service.  In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation.

10.  On 25 January 1956, the appropriate authority directed that the applicant be discharged under the provisions of Army Regulation 635-89 and issued an Undesirable Discharge Certificate.  On 24 March 1956, the applicant was discharged accordingly.  He had completed a total of 12 years, 5 months, and     24 days of creditable active military service.

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

12.  Army Regulation 635-89 (Personnel Separations), then in effect, authorized the separation of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 125, for sodomy is a punitive discharge and confinement for life.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The evidence of record clearly shows that the applicant was charged with sodomy and that he accepted an Undesirable Discharge for the good of the service in lieu of trial by General Court-Martial.   



4.  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.

5.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __DWT__  __JTM       DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___     John N. Slone _____
          CHAIRPERSON




INDEX

CASE ID
AR20070006378
SUFFIX

RECON

DATE BOARDED
20070006378
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19560324
DISCHARGE AUTHORITY
AR 635-89. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.