IN THE CASE OF:  

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090004410 


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.

2.  The applicant states, in effect, that he was involved in homosexual acts and his unit and chain of command picked on him when it became known.  He states he started to use drugs to kill the pain.    

3.  The applicant does not provide any documents 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 military records show that, on 6 September 1968, he enlisted in the Regular Army for a period of 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 94B (Cook). 
3.  The applicant's military service record documents no acts of valor or significant achievement.

4.  Records show that on or about 19 July 1969 at Fort Sam Houston, the applicant acknowledged during an investigation that he had oral sodomy with two Soldiers in his unit who he stated were homosexuals.  The applicant was interviewed by appropriate criminal investigating authorities.  Records show he prepared and signed a DA Form 2820 (Statement by Accused or Suspect Person) that states, in effect, that he had several fellatio acts with two Soldiers during the months of April and May in 1969.   

5.  On 28 July 1969, the applicant was referred for a psychiatric evaluation by his unit commander.  During the psychiatric evaluation at Brooke General Hospital, Fort Sam Houston, Texas, the applicant acknowledged that he allowed fellatio to be performed upon him by another member of his military unit.  The psychiatrist states that the applicant adamantly denies homosexual tendencies or desires.  The applicant said during the examination that he had a girlfriend and that he was heterosexually oriented.  The psychiatrist's findings were that the applicant was diagnosed with an immature personality, as manifested by some degree of identity confusion, poor judgment, and impulsiveness; that his character/behavior disorders were of a long duration; that the applicant was able to distinguish right from wrong, and to adhere to the right; and that he had the mental capacity to understand and participate in any action taken in his case.    

6.  On 11 September 1969, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality).  At that time, the applicant was furnished a copy of the commanding officer's report and copies of statements submitted to support the recommendation, along with the names of all witnesses who would appear or submit a statement to be used against him, and advised that an Undesirable Discharge Certificate may be issued to him.  He was advised of his rights to include entitlement to a hearing before a Board of Officers, to submit statements in his own behalf, to be represented by counsel, and to waive his rights in writing.  

7.  On 12 September 1969, the applicant consulted with counsel and acknowledged that his unit commander had initiated action to administratively discharge him from the Army under the provisions of Army Regulation 635-89, for homosexuality.  The applicant requested consideration of his case by a board of officers, to appear in person before said board of officers, representation by an appointed counsel.  He did not submit statements on his own behalf.  The applicant acknowledged that he might expect to encounter substantial prejudice in civilian life in the event of an undesirable discharge, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life. 

8.  On 7 October 1969, the applicant received notification to appear before a Board of Officers convened under the provisions of Army Regulation 635-89 for the purpose of determining whether he should be discharged before the expiration of his term of service.

9.  On 14 October 1969, a Board of Officers convened under the provisions of Army Regulation 635-89 and Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to consider appropriate action in the case of the applicant who had been recommended for elimination from the Army.  After conducting the hearing and carefully considering the evidence presented, the board found that he participated in five fellatio acts and, therefore, the applicant was no longer suited for military service and recommended that he be discharged from the service because of homosexuality. 

10.  On 14 November 1969, a Special Court-Martial at Fort Sam Houston, Texas found the applicant guilty of disobeying a lawful order of a superior commissioned officer when he was ordered to return to duty and not enter the barracks until 1630 hours on 10 September 1969; he disobeyed and entered the barracks on or about 1330 hours on 10 September 1969.  The sentence consisted of confinement to hard labor for 5 months and a forfeiture of $65.00 per for 6 months.

11.  On 13 January 1970, the general court-martial convening authority approved the Separation Board's recommendation.

12.  On 3 February 1970, the applicant was issued an Undesirable Discharge Certificate in the rank of private/pay grade E-1.  The reason for discharge was homosexuality.  The DD Form 214 he was issued confirms he completed of 
1 year, 2 months, and 9 days of active military service.

13.  On 23 December 1974, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  

14.  On 30 July 1976, the ADRB reviewed the records of the applicant, along with the regulation in effect at the time of discharge and at the time of review, and determined that the applicant was properly discharged.  



15.  Army Regulation 635-89, then in effect, stated that homosexual personnel, irrespective of sex, would not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals is mandatory.  It stated that an honorable or general discharge could be approved if the individual concerned disclosed his homosexual tendencies at the time of entrance into service, or if the individual had performed outstanding or heroic military service, or if the individual had performed service over an extended period and the convening authority determined that the best interests of the service would be served thereby.  It stated that upon determination that an enlisted person was to be discharged from the service with an undesirable discharge, the authority accomplishing the discharge would, if the individual concerned were in a grade above E-1, automatically reduce such an individual to grade E-1.

16.  Army Regulation 635-200 (Active Duty Enlisted Separations) currently in effect, states that homosexuality is incompatible with military service and that the basis for separation may include preservice, prior service, or current service homosexual conduct.  It states that a Soldier will be separated if “the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there are approved findings that:”

	a.  such conduct was a departure from the Soldier's usual and customary behavior;  

	b.  such conduct is unlikely to recur because it is shown, for example that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service;

	c.  such conduct was not accomplished by use of force, coercion, or intimidation;

	d.  under the particular circumstances of the case, the Soldier's continued presence in the Service is consistent with, the interest of the service in proper discipline, good order, and morale; and 

	e.  the Soldiers does not desire to engage in or intend to engage in homosexual acts.

17.  Army Regulation 635-200 further noted that to warrant retention of a member, findings must “specifically include all five findings” listed above.  It noted that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted and if there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act:
	a.  by force, coercion, or intimidation;

	b.  with a person under 16 years of age;

	c.  with a subordinate in circumstances that violate customary military superior-subordinate relationships;
	
	d.  openly in public view;

	e.  for compensation; 

	f.  aboard a military vessel or aircraft; or

	g.  in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other members of the Army Forces.  In all other cases the type of discharge will reflect the character of the member’s service.

18.  The basis for separation of Soldiers based on homosexual conduct is defined by Title 10, U. S. Code, Section 654 and in Section 8, Article I of the Constitution of the United States.  

19.  Title 10, U.S. Code, Section 654, states that the prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstance of military service.  There is no constitutional right to serve in the armed forces.

20.  Section 8 of Article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.  Pursuant to the powers conferred by Section 8 of Article I of the Constitution, it lies within the discretion of the Congress to establish qualifications for and the conditions of service in the Armed Forces.

21.  Army Regulation 600-20 (Army Command Policy) states that a person’s sexual orientation is considered a personal and private matter and is not a bar to entry or continued service unless manifested by homosexual conduct.  It also notes, in pertinent part, that homosexual conduct is grounds for separation from the Army under the terms set forth in Army Regulation 635-200 for enlisted Soldiers.

22.   Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant admitted to participating in acts of fellatio with two Soldiers in his company area on Fort Sam Houston, Texas.  He admitted that he did this several times on unspecified dates during a two month period.  Such conduct was then, and continues to be, a basis for administrative separation from the military.  The fact that he denies being a homosexual is not evidence that his separation was erroneous or unjust.

2.  The evidence of record shows that the ADRB reviewed the applicant's discharge and determined that he was properly discharged.

3.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's record shows he requested and was granted a separation board of review by commissioned officers.  The board found that the applicant did, in fact, participate in five fellatio acts with two different Soldiers in his unit and that he was undesirable for further retention in the Army.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process to include counsel's representation during the separation board.  Further, the applicant's discharge accurately reflects the misconduct that resulted in his discharge.

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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions or an honorable discharge.

6.  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.  

7.  While the applicant did not provide any evidence to show he was "picked on" after his homosexual acts were discovered, even if he had it would not form the basis to grant his request.  He was discharged because of his homosexual acts, not for conduct after those acts were discovered. 

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)                                         AR20090004410



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ABCMR Record of Proceedings (cont)                                         AR20090004410



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