IN THE CASE OF:	  

		BOARD DATE:	       10 September 2009

		DOCKET NUMBER:  AR20090006566 


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, a change to the separation authority and narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states she was unjustly accused of being a homosexual.  She states that she did not participate or solicit others to participate in homosexual acts.  She states that there were no witnesses to the charges against her and that under the duress of her lawyer, she was told to sign the discharge papers.  She states that the first discharge packet that was submitted was turned down due to the fact that there was no evidence of her being a homosexual.

3.  The applicant provides a copy of her DD Form 214.

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 after completing 4 years, 6 months, and 14 days of total prior active service in the Regular Army (RA), the applicant enlisted in the RA in Miami, FL, on 1 October 1980, for 3 years.

3.  On 29 June 1981, the applicant submitted a statement requesting that she be immediately discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, for homosexuality.  In her statement, the applicant stated that during the last 6 months she actively and willfully participated in a homosexual relationship with another adult female; that she was quite comfortable with the activity; and that she intended to pursue the relationship indefinitely.  She stated that she understood that she could receive a discharge under other than honorable conditions and that she was fully aware that with a discharge for homosexuality, she may encounter extreme prejudice in civilian life and have difficulty obtaining a civilian job.  The applicant went on to list her Army achievements and she stated that in light of her homosexual activity, she believed it to be in her best interest, as well as the best interest of the Army, that she be separated from the service.

4.  On 6 July 1981, the applicant underwent a Mental Status Evaluation and the attending psychiatrist opined that she had the mental capacity to understand and to participate in board proceedings; that she was mentally responsible; and that she met the retention requirement of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The psychiatrist noted that the applicant stated that she was currently a practicing homosexual.

5.  The applicant was notified on 6 July 1981 that she was being recommended for discharge from the Army under the provisions of Army Regulation 635-200, chapter 15-4b, for homosexuality.  She acknowledged receipt of the notification on 7 July 1981 and, after consulting with counsel, she waived her rights; however, she opted to submit a statement in her own behalf.

6.  In the undated statement submitted by the applicant she listed her accomplishments and she reiterated that she was having a relationship with an adult civilian female.  In her statement, she requested that she be furnished an honorable discharge.

7.  The appropriate authority approved the recommendation for discharge on 1 September 1981 and he directed the issuance of an Honorable Discharge Certificate.

8.  Accordingly, on 10 September 1981, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 15-4a, due to engaging, attempting to engage, or soliciting another to engage in homosexual act(s).  She had completed 11 months and 10 days of active service this period with a total of 5 years, 5 months, and 24 days of creditable active service.

9.  Army Regulation 635-200 serves as the authority for the separation of enlisted personnel.  Paragraph 15-3b (Criteria) provides, in pertinent part, that a Soldier will be separated under this paragraph if he or she has stated that they are a homosexual or bisexual, unless there is a further finding that such is not the case.  An honorable discharge is normally considered appropriate unless there is evidence that during the current term of service, the Soldier attempted, solicited, or committed a homosexual act.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her separation authority and her narrative reason for separation should be changed.

2.  Her contentions have been noted; however, they are without merit.  Her records show that she voluntarily admitted in several different documents that are contained in her official records that she participated in a homosexual relationship with another adult female while she was in the Army.  She has provided no evidence to show that she was unjustly accused of being a homosexual.

3.  The applicant was properly discharged in accordance with the applicable regulation and it appears that her separation authority and narrative reason for separation are correct as currently reflected on his DD Form 214.

4.  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 has failed to submit evidence that would satisfy this requirement. 

5.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.



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)                                         AR20090006566



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ABCMR Record of Proceedings (cont)                                         AR20090006566



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