IN THE CASE OF:	  

		BOARD DATE:	       24 March 2009

		DOCKET NUMBER:  AR20090000409 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was 16 turning 17 years of age when he joined the Army.  He states that when he joined the Army he was not gay.  He did not know much about the world, but what he learned he learned in the Army.  He does not think he should be blamed for something that he learned while in the Army.  He states that he did nothing wrong.  He further states that he was told his discharge would be upgraded to a general discharge within 3 months of leaving the service.  He just wants to be treated fairly.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 3 October 1968, the applicant enlisted in the Regular Army for 3 years.  He was 17 years and 5 days old at the time.  He completed his initial training and was awarded military occupational specialty (MOS) 76A (Quartermaster Supply).

3.  On or about 26 February 1969, the applicant was assigned for duty with Headquarters Company, Kaiserslautern Army Depot, in the Federal Republic of Germany.

4.  On 19 April 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for dereliction of duty.  He failed to clean his room.  The punishment included reduction to pay grade E-1, a forfeiture of $15.00 pay per month for 1 month, and 14 days extra duty.

5.  The applicant's discharge packet is not contained in his military records.  However, his DD Form 214 shows that he was administratively discharged on                 2 October 1969, under the provisions of Army Regulation 635-89, for Class III homosexual unsuitability.   His DD Form 214 shows that his character of service as under conditions other than honorable and that he was issued a DD Form 258A (Undesirable Discharge Certificate).  He had completed 1 year of creditable active duty service.

6.  Army Regulation 635-89 (Personnel Separations – Homosexuals), in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts.  Individuals involved in isolated episodes stemming solely from immaturity, curiosity, or intoxication were excluded, but were to be eliminated under other regulations, if appropriate.  Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated Class I.  Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated Class II.  Class III applied to individuals who had committed only pre-service homosexual acts.   An undesirable discharge was normally considered appropriate for Class II cases.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable 

discharges were issued.  A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service or if an individual had served for an extended period of time and the separation authority determined that such action was in the best interests of the service.  In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was young at the time of his entry into the Army; that he learned about homosexuality in the service and should not be blamed for what he learned while in the service.  He further contends that his discharge was to be upgraded 3 months after his separation.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust, or that his young age was a contributing factor.  

4.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

5.  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 the aforementioned requirement.

6.  In view of the above, the applicant’s request should not be granted.

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)                                         AR20090000409



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ABCMR Record of Proceedings (cont)                                         AR20090000409



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