RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001441


	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:


M

Chairperson

M

Member

M

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 discharge be upgraded.

2.  The applicant states that there is no record error.  He continues, in effect, that he lied while in service to effect his discharge because he was young and not thinking clearly as a result of suicide threats made by his pregnant girlfriend.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his discharge recommendation memorandum, letter of endorsement from his counsel of record, letter of recommendation from his congressman, National Guard Bureau enlistment application documents, two self-authored statements, six character reference statements, and employment records in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board upgrade the applicant's discharge to enable him to enlist in the Army National Guard.

2.  Counsel states that the applicant was a young and foolish recruit who reacted to the manipulations of his girlfriend and made a poor decision to lie his way out of the service.  Counsel continues that the applicant's adult life has been challenging; that the applicant is committed to his family and his country and has a very good work ethic; and that the applicant appears to be in good physical condition, is neat and clean, and is well spoken.

3.  Counsel provides no additional documentation in support of this 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.  The applicant's military service record shows that he enlisted in the Regular Army on 14 November 1989.  There is no evidence to indicate that the applicant completed basic training or advanced individual training, or that he was awarded a military occupational specialty.  The highest rank the applicant achieved was private/pay grade E-1.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 6 February 1990, the applicant voluntarily disclosed to the battalion chaplain that he desired and attempted a sexual act with a fellow Soldier in the shower a few days earlier.  The applicant further disclosed previous incidents prior to his entry into the military.

5.  On 7 February 1990, the applicant was evaluated by the Community Mental Health Service (CMHS) which reported that the applicant revealed a seven year history of homosexual activity and that the applicant became aroused around other males.

6.  On 7 February 1990, the applicant was counseled by his commanding officer for soliciting sexual activity from another Soldier on 3 February 1990.  The applicant was evaluated by the CMHS and the battalion chaplain who verified the incidents and revealed that the applicant had a seven year history of homosexual activity and thoughts.  The applicant was advised that his commanding officer was recommending that he be discharged from the service under the provisions of chapter 15 of AR 635-200 (Personnel Separations) and that the discharge could be under other than honorable conditions.

7.  On 21 February 1990, the applicant stated, in effect, that on 3 February 1990 he solicited sexual activity from another Soldier in the shower.  He continued that on 5 February 1990, he made physical contact with the same Soldier who pushed him away.  On 6 February 1990, the aforementioned Soldier advised the applicant to report the incident.  The applicant then reported the incident to the chaplain.  The applicant further stated that he avoids that Soldier, that he is afraid it may happen again because he is in an all male environment, and that he does not want to stay in the Army.

8.  On 22 February 1990, the applicant's commander notified him of the intention to separate him under the provisions of chapter 15 of Army Regulation 635-200.  Specifically, the applicant was notified that the reason for the proposed action was the applicant's homosexual tendencies.

9.  On 23 February 1990, the applicant was advised by his consulting counsel of the basis for the contemplated separation action for homosexuality and its effect, and of the procedures and rights that were available to him.  The applicant waived his right to a personal appearance before, and consideration of his case by, an administrative separation board.  The applicant acknowledged that he understood that if issued a general discharge under honorable conditions, or a discharge under other than honorable conditions, he could encounter substantial prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he would be ineligible to apply for enlistment in the United States Army after discharge.

10.  On 23 February 1990, the applicant's commanding officer recommended separation under the provisions of chapter 15 of Army Regulation 635-200.  The recommendation cited that on 7 February 1990 the applicant stated to his commanding officer that he had solicited sexual activity from another Soldier on at least two occasions, that the applicant was evaluated by the CMHS and the battalion chaplain, that the applicant was counseled on chapter 15 and the effects of that action, and that the fact that the applicant experiences sexual arousal around other male soldiers makes it impracticable for him to continue training in the military.

11.  On 2 March 1990, the applicant was separated under the provisions of chapter 15 of Army Regulation 635-200 with an uncharacterized discharge.  The applicant was issued a DD Form 214 which reflects paragraph 15-4b of Army Regulation 635-200 as the separation authority for admission of homosexuality; the entry "JRB" (Homosexual Conduct Statement) in block 26 (Separation Code); and the entry "4" in block 27 (Reentry Code), which is applied to a person separated from the service with a nonwaivable disqualification rendering the applicant ineligible for enlistment.  The applicant completed a total of 3 months and 19 days of creditable active military service during this period.

12.  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.

13.  Army Regulation 635-200 sets forth the policy for separation of enlisted personnel for homosexuality.  Chapter 15 of this regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the administrative separation of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued.  Paragraph 15-4b of this regulation, then in effect, provides that the type of discharge will reflect the character of the Soldier's service.

14.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 applicant's request that his discharge be upgraded was carefully considered and determined to be without merit.

2.  The applicant contends that his discharge should be upgraded because he was young and not thinking clearly at the time of his service.  Records show that the applicant was 19 years old at the time of his separation.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's military service record shows that he executed a sworn statement to the effect that he committed homosexual acts and that similar acts could occur in an all male environment.

4.  The applicant's record shows that the applicant was counseled regarding separation for homosexuality and the possible negative effects of this discharge. There is no evidence that he indicated at that time that this action was in error or unjust, or that his statement was false.

5.  The applicant states in his application that his military service record is not in error.  Other than his own contention, there is no evidence that his sworn statement was false or otherwise in error.  The applicant's administrative separation was accomplished in compliance with applicable regulatory guidance with no indication of procedural errors that would jeopardize his rights.

6.  Inasmuch as the applicant was discharged based on his own admission of homosexuality, the reason and authority for discharge is correct as currently constituted.  Therefore, based on the available records, there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x___  _x__  _x          ___  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.




	___x___
	CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001441



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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