IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080012996 


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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he served his country to the best of his ability.  He states he was very young and made a mistake and now apologizes for the mistakes.   

3.  The applicant provides no 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 record shows that he enlisted in the Regular Army and entered active duty on 28 July 1999.  He successfully completed One Station Unit Training (OSUT) at Fort Benning, Georgia, and was awarded military occupational specialty (MOS) 11B (Infantryman) in December 1999.

3.  The applicant's record shows that upon completion of training he was assigned to Fort Campbell, Kentucky, where he arrived for duty on 24 January 2000.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and shows that private/E-2 (PV2) is the highest rank he attained while serving on active duty.

4.  On 11 October 2000, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of Chapter 15, Army Regulation 635-200, based on the applicant's propensity to engage in sexual activity with members of the same sex.  The unit recommended the applicant receive a GD.  The applicant acknowledged receipt of the notification and consulted with legal counsel, who informed the applicant of the basis for the contemplated separation action, its effects, of the rights available to him, and the effect of any action taken by him to waive those rights.  Subsequent to this counseling, the applicant completed an election of rights in which he waived his right to consideration of his case by personal appearance before, and representation by counsel at an administrative separation board.  The applicant did elect to submit a statement in his own behalf.  

5.  In the statement he submitted during his separation processing, the applicant indicated that he had a natural propensity to engage in sexual activity with members of the same sex.  He further indicated that given his statement of sexual orientation, and since he did not wish to rebut the presumption created under the current Department of Defense and Department of the Army regulations, he respectfully requested discharge from the Army under the provisions of Chapter 15, Army Regulation 635-200.  

6.  On 11 October 2000, the separation authority approved the applicant's separation and directed he receive a GD.  

7.  On 24 October 2000, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 October 2000, for two specifications of disobeying lawful orders and making a false official statement.  His punishment for these offenses was a reduction to private/E-1 (PV1), forfeiture of $263.00, and 7 days of restriction and extra duty.  

8.  On 27 October 2000, the applicant was confined by civil authorities, a status he remained in for 7 days until 2 November 2000.  
9.  On 2 November 2000, the applicant was discharged under the provisions of Paragraph 15-3b, Army Regulation 635-200, by reason of homosexual admission.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 1 year, 2 months, and 28 days of creditable active military service, and that he accrued 7 days of time lost due to civil confinement.  

10.  On 19 December 2001, after carefully considering the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB), determined the applicant's discharge was proper and equitable, and it denied the applicant's request for an upgrade of his discharge.  

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes the Army's enlisted separations policy.  Chapter 15 contains the policy for the separation of members for homosexual conduct.  Paragraph 5-13 outlines the criteria for discharge and subparagraph b states, in pertinent part, that a Soldier will be discharged if he/she has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he/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.  It further states, in pertinent part, that a statement by the Soldier that he/she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the Soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The Soldier bears the burden of rebutting this presumption.

12.  Paragraph 15-14 of the enlisted separations regulation provides guidance on characterization of service and states, in effect, that a GD may be issued if supported by the overall record of service and there is a finding during the current term of service that the Soldier attempted, solicited, or committed a homosexual act.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was young and made a mistake was carefully considered.  However, there is insufficient evidence to support a conclusion that the applicant's youth and immaturity significantly contributed to the misconduct that led to his discharge.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain a disciplinary history that includes his acceptance of NJP and his accrual of lost time due to civil confinement.  This misconduct clearly diminished the overall quality of the applicant's service below that meriting a fully honorable discharge.  Absent any evidence that the applicant rebutted the presumption attached to his homosexual/bisexual admission statement, there is an insufficient evidentiary basis to support an upgrade of his GD.

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.

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)                                         AR20080012996



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ABCMR Record of Proceedings (cont)                                         AR20080012996


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