IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080003650 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to honorable.

2.  The applicant states, in effect, that he served as a minority officer at a young age, with a strong academic background at a time before diversity was embraced in the military or American society.  He also states that due to his ability to grasp new concepts and ideas rapidly and always accomplished any mission assigned ahead of schedule, charges were “trumped up” based on false allegations and rumor.  The applicant states, in effect, that his discharge was inequitable because it was based on allegations of inappropriately touching someone.  He states, in effect, that he made an error in judgment by not taking the matter to trial by court-martial and that he learned from his military experience.  He has since had a successful private life, which includes a healthy marriage and a professional life which has resulted in his advancement within many Fortune 500 companies, as well as a public life that has included church, community service, and politics.  He states, in effect, that he will always be proud of the fact that he did serve his country.  

3.  The applicant provides a copy of a personally-written statement; a statement from the CEO (Chief Executive Officer) of National Business Services, Inc.; a character reference letter from a Member of Congress (MOC); and a completed DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, in support of his request. 

4.  On 29 November 2007, the applicant corresponded with his MOC and asked for his assistance in getting an upgrade of his discharge.  On 4 January 2008, the applicant's MOC intervened in the applicant's behalf and has asked that his constituent be offered any assistance that can be given under applicable laws and regulations. 

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 record shows he was inducted into the Army of the United States on 8 November 1966.  The applicant successfully completed basic combat training at Fort Benning, Georgia and advanced individual training at Fort Lee, Virginia.  On completion of his training, he was awarded the military occupational specialty (MOS), 76A, Supply Clerk.  

3.  On 14 February 1968, the applicant was honorably discharged from the enlisted ranks in the rank of specialist five and on 15 February 1968 he was appointed as a commissioned officer in the rank of 2nd Lieutenant in the United States Army Reserves (USAR), with a concurrent call to active duty.  

4.  The evidence shows that three sworn statements were written by male subordinate Soldiers stating he requested to have or inappropriately engaged in homosexual acts upon them.  There is no Criminal Investigative Division (CID) report in the applicant’s record; however, three of the applicant's subordinate Soldiers provided a sworn statement in an investigation which was conducted.

5.  The applicant provided no documentary evidence to show that charges were "trumped up," as he alleges, or that he refuted the allegations made by his subordinates in sworn statements.

6.  When the applicant's subordinates prepared their sworn statements, they were aware that their statements were being made voluntarily.  They made their statements freely without hope of benefit or reward, without coercion, unlawful influence, or unlawful inducement.

7.  As noted on the sworn statements, each of the subordinates was advised of their rights and each had the opportunity to remain silent.  Each of the applicant's subordinates was advised and they acknowledged that if they testified falsely, the statement they were providing could be used against them in a criminal trial.

8.  On 20 September 1968, the commander recommended that the applicant be discharged under other than honorable conditions under the provisions of Army Regulation 635-120, paragraph 5-7.  

9.  On 20 September 1968, the applicant voluntarily submitted his resignation from the Army for the good of the service.  It was forwarded through military channels for consideration and decision on 27 September 1968.  

10.  In his letter of resignation, the applicant declined to appear before a board of officers and acknowledged that he had not been subjected to coercion with respect to his resignation and was advised of and fully understood the implications of this action.

11.  The applicant stated that he understood that if his resignation was accepted, it could be considered as under other than honorable conditions and that an Under Other Than Honorable Conditions Discharge Certificate could be furnished.  He elected to remain silent when afforded the opportunity to present matters in explanation, mitigation, or in defense of his case.

12.  The applicant was advised and consulted by counsel and stated that he understood the implication of his voluntary action.  He further understood and acknowledged that if his resignation was accepted under other than honorable conditions, he would not be entitled to compensation for unused accrued leave, severance or readjustment pay (as appropriate), and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).

13.  The separation authority approved the applicant’s request for resignation.  His resignation was for the good of the service and he received a discharge characterized as under other than honorable conditions.  The applicant was discharged on 19 November 1968, in the rank of 2LT, under the provisions of Army Regulation 635-89, paragraph 9.

14.  The applicant submitted an application for upgrade of his discharge to the Army Discharge Review Board (ADRB) along with his application to the ABCMR; however, it is not within that board’s 15-year statue of limitations.  Therefore, the request was not considered by the ADRB.

15.  Army Regulation 635-89, in effect at the time, prescribed the authority, criteria and procedures for the disposition of military personnel who are homosexuals; and military personnel who engage in homosexual acts, or are alleged to have engaged in such acts. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case shows that the applicant voluntarily submitted a resignation for the good of the service.  As a result, his resignation was approved.

2.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has provided insufficient evidence to mitigate the characterization of his discharge.

3.  The applicant stated, in effect, that he served as a minority officer at a young age, with a strong academic background at a time before diversity was embraced in the military or American society.  He also states that due to his ability to grasp new concepts and ideas rapidly and always accomplished any mission assigned ahead of schedule, charges were “trumped up” based on false allegations and rumor.  The applicant states, in effect, that his discharge was inequitable because it was based on allegations of inappropriately touching someone.  He states, in effect, that he made an error in judgment by not taking the matter to trial by court-martial.  However, the evidence shows that he opted to resign for the good of the service.

4.  The applicant provided no documentary evidence to show that charges were "trumped up" or that he refuted the allegations made by his subordinates in sworn statements.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.





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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003650



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ABCMR Record of Proceedings (cont)                                         AR20080003650



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