BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007454 


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 that he wishes to have his discharge upgraded due to a change in his status.  He does not explain his change in status other than to say that in 1970 the policy of "Don't ask, Don't tell" was not an option.  He contends that he is now in need of health benefits.  

3.  The applicant provides, in support of his application, copies of three letters of support and a criminal records check. 

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 April 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  

3.  On 20 August 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL).  The punishment included a forfeiture of $15.00 pay per month for 1 month and 2 days of extra duty and restriction.

4.  On 23 September 1969, the applicant was assigned for duty with the 171st Support Battalion, 171st Infantry Brigade in Alaska.

5.  On 21 January 1970, the applicant was promoted to specialist four, pay 
grade E-4.

6.  On 20 May 1970, the applicant accepted NJP for disobeying a lawful order from his company commander and for operating a motorcycle on post with an expired registration.  The punishment included reduction to private first class, pay grade E-3, 14 days of restriction and extra duty (10 days suspended).

7.  On 17 September 1970, the applicant stated to his company commander that he had been a homosexual since early adolescence.  He stated that he had made contacts with civilians in Fairbanks, Alaska, but not with any enlisted men at Fort Wainwright.  He maintained that he was able to control himself around other Soldiers but that in doing so, he was constantly in a highly nervous state of mind.  The commander counseled the applicant, telling him that he thought the applicant could perform his duties without becoming involved in any homosexual activities.  The applicant had been in the Army for 18 months and until his admission, no one in the Army was aware of his claim of being a homosexual.  The commander advised the applicant to stay away from any activities that would involve him in homosexuality.

8.  On 25 September 1970, the applicant was again counseled by his company commander.  The applicant stated that he had no desire to change his sexual identity and wanted a general discharge.  The commander advised him of the social stigma and future ramifications of a general discharge.  The commander arranged a psychiatric appointment for the applicant.

9.  A report of psychiatric evaluation, dated 19 October 1970, stated that the applicant appeared alert and cooperative.  He was able to understand and to express himself reasonably well and demonstrated average intelligence.  There were no indications that suggested a thought process or affect disturbance.  The applicant indicated that he had homosexual contacts prior to and since entering the Army.  The increasing pressure of maintaining his psychosexual anonymity had created some symptoms of anxiety and depression and made it more difficult for him to adjust within the military system.  A precise determination regarding the applicant's sexual identity could not be made from this neuropsychiatric evaluation.  It was strongly suggested that the applicant experienced homosexual orientation and that his psychosexual identity would not change and rehabilitative measures within the military would not be effective in creating the drastic changes necessary in his personality.  The applicant did not have any mental defect, disease or derangement and had the mental capacity to understand the nature and probable consequences of his acts.  He was able to distinguish between right and wrong and to adhere to the right.  He had the mental capacity to understand the nature of any proceedings against him and to cooperate in his own defense.  

10.  On 29 October 1970, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  The commander stated that after several interviews with the applicant, he was of the opinion that the applicant was a homosexual.  The commander recommended a general discharge.

11.  On 2 November 1970, the applicant's battalion commander stated that he had personally counseled the applicant and was convinced that he was a homosexual, but could not prove it.  The applicant's job performance was marginal.  He was more of a hindrance than a help to his fellow Soldiers.  The battalion commander recommended a general discharge.

12.  On 12 November 1970, the applicant's brigade commander stated that the applicant's past performances were not sufficiently meritorious to deserve a general discharge.  The brigade commander recommended an undesirable discharge.

13.  On 10 December 1970, the appropriate authority approved the separation action and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 22 December 1970, the applicant was discharged accordingly.  He had completed 1 year, 8 months, and 18 days of creditable active duty service.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 
6a (7) of the regulation provided, in pertinent part, that members who engaged in one or more homosexual acts during military service were subject to separation for unfitness.  An Undesirable Discharge Certificate was normally considered appropriate.
15.  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.

16.  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.

17.  The applicant has provided letters of support from his employer, state senator, and the senior warden of his church.  They essentially applaud the applicant's exemplary character and involvement in the community.  His employer states that the applicant has excelled in his work.  

18.  The criminal records check provided by the applicant indicates that he has no record with his county sheriff's office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he can obtain health care benefits.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

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 this requirement.

6.  In view of the above, the applicant's request should be denied.
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)                                         AR20090007454



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ABCMR Record of Proceedings (cont)                                         AR20090007454



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