RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20070017350 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 reconsideration of his request that his undesirable discharge be upgraded to fully honorable.  As new issues, he also requests that he be issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for his first period of service.

2.  The applicant states, in effect, that he is submitting additional letters of support of his request to amend his discharge.  The applicant further states that he originally enlisted on 5 October 1948 for a period of 3 years and served honorably until 29 July 1952, for a total of 3 years, 9 months, and 25 days.  He received an honorable discharge on 29 July 1952 at the rank of Corporal for the purpose of reenlistment.  Therefore, he believes he is entitled to recognition of having an unconditional discharge on 4 October 1951, three years after his enlistment.  The document is needed for purposes of determining entitlement to benefits administered by the Department of Veterans Affairs (VA).

3.  The applicant provides his DD Form 214 with the period ending 30 July 1952; four letters of support; Headquarters Army Service Unit Provisional Group Special Orders Number 173, dated 25 July 1952; a U.S. Army Honorable Discharge Certificate, dated 29 July 1952; a Certification of Military Service, dated 4 February 2004; a WD AGO Form 21 (Enlistment Record), dated 
5 October 1948; a Standard Form 88 (Report of Medical Examination), dated 
24 July 1952; and a 6-page VA Psychiatric Progress Notes, dated 4 February 2008. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009586, on 1 February 2007.

2.  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.

3.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, all the evidence provided is new evidence which will be considered by the Board.

4.  The applicant enlisted in the Regular Army on 5 October 1948 for a 3-year term of service.  He was honorably discharged on 29 July 1952, after completing 3 years, 9 months, and 25 days of creditable active service that period for the purpose of immediate reenlistment on 30 July 1952.

5.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 with the period ending 26 June 1957 shows that he was separated under the provisions of Army Regulation 635-205 and Army Regulation 635-89, by reason of Unfitness (Homosexual Acts), in pay grade E-1, after completing a total of 8 years, 8 months, and 22 days of active military service, and that he received an undesirable discharge and with a characterization of service of under other than honorable conditions.  

6.  The applicant provided a letter of support from a Clinical Coordinator at the Caribou Veterans Center, Caribou, Maine, dated 7 February 2007.  The author stated that the applicant was struggling with clinical depression related to an unsolved military sexual trauma.  The Clinical Coordinator continued that the applicant has been consistent in his reporting of details of the incident that happened to him in August 1956 and that the applicant's clinical presentation was consistent with that of a trauma victim.  The Clinical Coordinator had reported that he had recurring nightmares of being raped by another Soldier along with intrusive memories that can be triggered without warning.  The applicant stated that he was a victim who was treated like a criminal and suffered the embarrassment and the isolating effects of the under other than honorable conditions discharge.  

7.  The Clinical Coordinator stated that the applicant stated on several occasions how he struggled for years with trying to put the horrific incident behind him and that he avoided anything related to the Army.  The Clinical Coordinator also stated that from a clinical perspective that applicant's lack of follow through in challenging the under other than honorable conditions discharge was consistent with that of a person who was traumatized.  It made sense that he did whatever he had to do to get away from those who had accused him of being a homosexual which the applicant denies was ever the case.

8.  The applicant provided a letter of support from his brother, dated 8 February 2007.  The author stated that his brother's discharge should be changed to show he was given a good discharge.  The author stated, "I don't believe he is a homosexual.  Being his older brother, I would know whether he is or not."  The author continued that he never saw any indication of that trait in him and had known him as being a God loving man.

9.  The applicant provided a letter of support from his cousin, dated 8 February 2008.  The author stated that the applicant was his first cousin.  They grew up together and were raised up and fellowshipped in the church together.  The author further stated that the applicant was never a homosexual, and to the best of his knowledge, to this date still is not.

10.  The applicant provided a letter of support from a fellow associate, dated 
10 February 2008.  The author stated that he has known the applicant for over 
20 years.  The author stated that in all the years he has known the applicant he has been a loyal, honest, and trustworthy friend.  During the course of their relationship, the applicant revealed to him about the rape he had suffered while serving in the military.  The author was shocked at the news, as the applicant broke down crying, telling him he had carried the burden for all these years, and that he had been suffering in silence. 

11.  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.

12.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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.

14.  Special Regulation 615-360-1, effective 20 June 1950, established the procedures to be followed in the separation of enlisted personnel from active military service at the time of the applicant's reenlistment in July 1952.  In pertinent part, it stated that a DD Form 214 would be furnished all enlisted personnel separated from active military service for any reason.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 
2 contain guidance on the issuing and reissuing of the DD Form 214.  It states, in pertinent part, do not issue a DD Form 214 to replace record copies or DD Forms
214 lost by Soldier.  If no DD Form 214 is available, issue a statement or transcript of military record.

16.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, “Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  The new evidence provided by the applicant shows that his relatives and a fellow associate, all who have either known him all their lives or known him for more than 20 years, state that he had a religious background and upbringing and that he is not a homosexual.  The new evidence does not prove, but may indicate, that he very well is not a homosexual.  However, without having the discharge paperwork to review, it cannot be determined that the applicant should not have been recommended for discharge.

2.  Unfortunately, there are no records available to assist the Board in determining whether the applicant’s statement and his supporting documents 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.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, regrettably, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

4.  Evidence of record confirms that the applicant was honorably discharged on 29 July 1952 and that he immediately reenlisted on 30 July 1952.  It is presumed that he was issued a DD Form 214 in accordance with the applicable regulation at that time.  Under the current regulation that governs the DD Form 214 refers that a DD Form 214 cannot be issued to replace record copies or DD Forms 
214 lost by Soldier.  If no DD Form 214 is available, issue a statement or transcript of military record.  

5.  The applicant's records show that he was issued Certification of Military Service, dated 4 February 2004, to cover the period of service for his first enlistment since there was no available copy of his DD Form 214 for that period. In addition, the total of his service was entered on his DD Form 214 when he was discharged on 26 June 1957.  

6.  Since the applicant would have been eligible for an honorable discharge on 
29 July 1952, it appears that the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __DKH __  __EM  __  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 to amend the decision of the ABCMR set forth in Docket Number AR20060009586, dated 1 February 2007.




      ____         LDS_            _
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017350


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508