RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070011210 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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 an Honorable Discharge.

2.  The applicant states, in effect, that he was young and immature at the time he entered the service and that he was misled by his superiors.  He states he has been married since 1969, employed as an insurance agent for 20 years, and that he has not gotten into trouble. 

3.  The applicant did not provide any supporting documentation with his application.  

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 29 August 1964, the applicant enlisted in the Regular Army for 3 years.  Records show he was 17 years of age at the time of his enlistment and that his parents signed DD Form 373 (Consent, Declaration of Parent or Legal Guardian) consenting to his underage enlistment in the Armed Forces.  He was awarded the military occupational specialty 111 (Rifleman).  

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order of a superior noncommissioned officer (NCO) on 28 February 1963; for failure to go on 21 May 1963; and for disobeying a lawful order of a superior NCO on 22 April 1964.

4.  The applicant's service records further reveal a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 10 February 1964, for physical assault on 7 February 1964.  He accepted NJP on 18 June 1964 for being absent without leave on 12 June 1964.  On 14 October 1964, he accepted NJP for failure to go, disrespect towards a superior NCO and failure to obey a lawful order.  

5.  On 16 July 1964, a Summary Court-Martial found the applicant guilty of being absent without authority and breaking restriction on 28 June 1964.  

6.  On 6 November 1964, the applicant underwent a psychiatric evaluation and was diagnosed with homosexuality after being command referred due to two unit members stating the applicant asked them to engage in homosexual acts and his own personal statement to the Inspector General of the 82nd Airborne Division that he was a homosexual.  This medical record states, in pertinent part, that the applicant was very immature and that he had very little insight into the nature of his problem.  The applicant reported that he had 15 to 20 homosexual contacts.  He also stated that he had no desire to enter into a heterosexual relationship and that he had no interest in women.  The evaluating psychiatrist observed that the applicant appeared alert, oriented and showed no evidence of organic brain disease or psychosis.  He stated rehabilitation would be unlikely and recommended that the applicant be administratively separated under the provisions of Army Regulation 635-89.   

7.  On 17 November 1964, the applicant’s commanding officer recommended he be separated under the provisions of Army Regulation (AR) 635-89 for homosexuality.

8.  On 17 November 1964, the applicant signed a statement waiving a hearing before a board of officers.  He stated that he understood that his separation from the Army may 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.  He further waived his right to submit written statements on his behalf and stated he did not desire counsel.  He indicated he made these elections of his own free will and acknowledged receipt of his statement.

9.  On 30 November 1964, the appropriate authority directed that the applicant be discharged under the provisions of AR 635-89 and issued an Undesirable Discharge Certificate.  On 9 December 1964, the applicant was discharged accordingly.  He had completed a 2 years, 3 months, and 11 days of creditable active military service.

10.  The applicant’s DA Form 24 (Service Record) shows that he had unsatisfactory conduct and efficiency ratings during the period 16 October 1964 to 9 December 1964.

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, 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.

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

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. 

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was young and immature at the time he enlisted and then was processed for separation two years later.  He further contends that he has been married since 1969 and successfully employed as an insurance agent for 20-years.  

2.  The applicant submitted to a psychological medical evaluation after informing the Inspector General that he was homosexual.  The examining psychiatrist's diagnosis was homosexuality and recommended that the applicant be separated under the provisions of AR 635-89.  The applicant waived his right to consult with legal counsel and to a hearing by a board of officers.  He acknowledged that if he received an undesirable discharge that he could encounter prejudice and be denied veteran's benefits at the state and federal level.  He also did not submit statements on his behalf to the separation authority. 

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  He had one summary court-martial conviction and seven NJPs under the provision of Article 15, UCMJ.  These convictions and his misconduct render his service unsatisfactory. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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 this requirement.

5.  In view of the foregoing, there is no basis for upgrading the applicant’s undesirable discharge to an honorable discharge in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CLG___  __JRS__  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

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.





___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.