IN THE CASE OF:	  

		BOARD DATE:	       9 APRIL 2009

		DOCKET NUMBER:  AR20090000895 


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 that her under other than honorable conditions discharge be upgraded to honorable and the reason for discharge be changed to read for the "convenience of the government."

2.  The applicant states, in effect, that prior to the allegations lodged against her in July 1978, her military service records show she served honorably and earned the rank of specialist four (SP4)/E-4.  Therefore, she feels that her discharge should be honorable based on the inappropriate misconduct allegations of homosexual acts.

3.  The applicant provides a copy of her DD Form 214 (Report of Separation from Active Duty).

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 she enlisted in the Regular Army and entered active duty on 21 May 1976.  She was trained in and awarded military occupational specialty 31M (Multi-channel Communications Equipment Operator).

3.  There are no documents in the applicant's available records that provide the facts and circumstances of her discharge proceedings under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations).

4.  Orders 151-30, dated 11 July 1978, show that the applicant was reduced from the rank of SP4/E-4 to private (PVT)/E-1.  The authority was listed as paragraph 7-64c, Army Regulation 600-200, and Commander's Letter, dated 10 July 1978, subject:  Board Proceedings Under Provisions, Section V, Chapter 14, Army Regulation 635-200.

5.  The applicant's DD Form 214 shows that she was discharged under the procedures of Army Regulation 635-200, paragraph 14-33a(3), under conditions other than honorable on 21 May 1976.  The applicant had 2 years and 2 months of total active service.

6.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within the 15-year statute of limitations of that board.

7.  Army Regulation 600-200 (Enlisted Personnel Management System) prescribes policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7-64 at the time provided reasons for reduction based on misconduct.  The regulation stated, in pertinent part, that an enlisted Soldier could be considered for reduction of one or more grades by receiving an Article 15, Uniform Code of Military Conduct (UCMJ), court-martial, or conviction by civil court.  Chapter 7-64c further stated that upon determination by the general court-martial authority that an individual was to be discharged from service under other than honorable conditions, individuals would be reduced to the lowest enlisted grade.  Board action was not required for a reduction of this nature. The commander exercising general court-martial jurisdiction would, when directing a discharge under other than honorable conditions, or upon receipt of directive from higher authority, direct reduction of the individual to PVT/E-1.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-33 at the time established policy and prescribed procedures for separating members for other acts or patterns of misconduct.  Chapter 14-33a(3) stated that homosexual acts were bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act.

9.  The regulation further stated that members who were involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication normally would not be processed for discharge because of homosexual acts.  An under other than honorable discharge certificate was normally appropriate for a member who was discharged for acts and patterns of misconduct.

10.  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.

11.  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 evidence of record shows that the applicant was reduced in rank from SP4 to PVT.  Based on the authority cited in the reduction order, Army Regulation 600-200, paragraph 7-64c, it appears that the applicant was reduced due to the characterization of her discharge.

2.  There is no evidence and the applicant has failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      ____________XXX_____________
                 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)                                         AR20090000895



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ABCMR Record of Proceedings (cont)                                         AR20090000895



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