IN THE CASE OF:
BOARD DATE: 02 March 2010
DOCKET NUMBER: AR20090016517
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 his honorable discharge be changed to a general under honorable conditions discharge.
2. The applicant states that he should not have been given an honorable discharge because he is a gay male and since he has been gay all of his life, he was gay at the time of his service in the Army. He contends that at the time of his discharge, to the best of his knowledge gay men and women were discharged "under honorable conditions" and that is what his discharge should reflect.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and an Honorable Discharge Certificate 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The applicant's DD Form 214 shows he was inducted into the Army of the United States on 20 June 1956. He served as a clerk typist and was honorably released from active duty on 19 June 1958 under the provisions of Army Regulation 635-200 (Personnel Separations - General Provisions for Discharge and Release) and Army Regulation 635-250 (Personnel Separations - Release to National Guard and Army Reserve) for expiration of his term of service. He was transferred to the U.S. Army Reserve to complete his remaining service obligation.
4. Item 13a (Character of Service) on the applicant's DD Form 214 shows the entry "honorable."
5. There is no evidence of record which shows the applicant was determined to be homosexual prior to his separation.
6. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. The regulation in effect at the time provided, in pertinent part, for the discharge or release from active duty upon expiration of term of enlistment or period for which inducted or ordered to active duty.
7. 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. However, there is no evidence of record which shows he was determined to be homosexual prior to his release from active duty on 19 June 1958.
2. The evidence of record shows the applicant was honorably released from active duty on 19 June 1958 after completing 2 years of creditable service.
3. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. It is also presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's requested relief.
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.
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) AR20090016517
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ABCMR Record of Proceedings (cont) AR20090016517
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