IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080009704 


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 removal of the entry “Unsuitability-Homosexuality” from Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that the narrative reason for separation should be removed because the wording has consistently provided a basis for perceived or factual discrimination against him with regards to his entitlement to veteran benefits and employment consideration afforded to all veterans.  He also states that the current Department of Defense (DOD) “Don’t Ask, Don’t Tell” policy is a clear indicator that discrimination exists in civilian and military circles and that the wording on his record merely contributes to that situation which he has endured for almost 30 years.

3.  The applicant did not provide any additional documentary evidence in support of 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.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 18 June 1979.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 05H (Electronic Warfare/Signal Intelligence-Morse Interceptor).  The highest rank he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4. On 3 October 1980, by memorandum, the U.S. Army Central Personnel Security Clearance Facility, Fort Meade, Maryland, notified the applicant of his ineligibility for access to sensitive compartmented information (SCI).  This determination was based on the applicant’s approach toward several individuals wherein he asked them to participate in homosexual activity or stated to them that he was homosexual.  Furthermore, during a psychiatric evaluation conducted on 15 August 1980, the applicant claimed a three year history of homosexuality.  The notification memorandum also stated that it was the opinion of the commanding officer that the applicant’s homosexual advances were deliberate attempts to avoid overseas service.

5.  The applicant’s records show that subsequent to the determination of his SCI ineligibility, he was reassigned on 24 October 1980 to Fort Benjamin Harrison, Indiana, to attend MOS 71D (Legal Specialist) AIT. 

6.  On 5 November 1980, the applicant admitted to his platoon sergeant of his sexual orientation and discussed with him the possibility of a discharge from the Army.

7.  On 7 November 1980, the applicant's immediate commander notified the applicant of his intent to initiate elimination proceedings against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for admission of pre-service homosexuality.  




8.  On 13 November 1980, the applicant acknowledged receipt of the notification memorandum to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.   

9.  The applicant also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement on his behalf.  In his statement, the applicant requested an honorable discharge.

10.  On 26 November 1980, the applicant’s immediate commander initiated separation action against the applicant, in accordance with paragraph 13-4(d) of Army Regulation 635-200, by reason of admission of pre-service homosexuality. The immediate commander remarked that the applicant was advised to separate his homosexual preference from his military life and had a change in room assignment to limit the close contact that might have occurred with prolonged relationship.  The immediate commander further remarked that the applicant was satisfied with his homosexuality and the course of action taken to separate him.

11.  On 28 November 1980, the applicant’s intermediate commander concurred with the immediate commander’s recommendation and recommended approval of the applicant’s discharge.  He further recommended an Honorable Discharge Certificate.   

12.  On 4 December 1980, the separation authority approved the applicant's discharge from the Army under the provisions of paragraph 13-3d of Army Regulation 600-200 and directed he receive an Honorable Discharge Certificate. Accordingly, the applicant was discharged on 10 December 1980.  The DD Form 214 he was issued confirms he was discharged with an honorable discharge and that he completed 1 year, 5 months, and 23 days of creditable active military service.  Item 28 (Narrative Reason for Separation) of this form shows the entry “Unsuitability-Homosexuality.” 





13.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-4 provided for separation due to inaptitude, personality disorder, apathy, and homosexuality applied to separation for unfitness and unsuitability.  At that time, action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant was satisfied with his homosexuality and the course of action taken to separate him.  He acknowledged that he understood the ramifications of his discharge and consulted with legal counsel prior to accepting discharge.

2.  The applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 13, Army Regulation 635-200 due to his admitted homosexuality.  Absent the homosexuality, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his unsuitability for the Army due to homosexuality.  The only valid narrative reason for separation permitted under that paragraph is "Unsuitability-Homosexuality.” 

3.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080009704



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ABCMR Record of Proceedings (cont)                                         AR20080009704



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