BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017107 


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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was falsely accused of participating in homosexual acts.  He states the perpetrator also had the same last name and they both were from the same hometown, but were not related.  He continues by saying that after endless questioning sessions, he admitted to committing homosexual acts.  He says after he admitted to the acts, he was drummed out of the Army with a less than honorable discharge.  He states he wants his veterans' benefits restored.

3.  The applicant did not provide supporting documents.

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 enlisted in the Regular Army for 3 years on 22 March 1960.  He completed basic and advanced individual training and was awarded military occupational specialty 724.10 (Switchboard Operator).

3.  The applicant's military service record documents no acts of valor or significant achievement.

4.  Available records show that in August 1960 the applicant reported having a homosexual encounter with a civilian at a club on post to the Criminal Investigation Division (CID).  The CID investigative reports or narrative summaries are not available for the Board's review.

5.  On 30 March 1961, the applicant's unit commander referred him to the post mental health clinic for a psychiatric evaluation.  During his psychiatric evaluation at Fort Gordon, the applicant acknowledged he had homosexual experiences and that he had been involved in a number of homosexual acts to include the one reported to CID.

	a.  The examination revealed an alert, cooperative, young male who was oriented on all spheres.  There was no evidence of delusions, hallucinations, or psychotic ideation.  Intellect was judged to be average with intellectual functions grossly intact.  The applicant did show evidence of confusion as to his sexual identification, but he did not express feelings of guilt during the examination.

	b.  The applicant's mental status was age-appropriate with fair insight and judgment.  His diagnosis was a sexual deviate with overt homosexuality.

	c.  The applicant possessed sufficient mental capacity to know the difference between right and wrong; he was able to adhere to the right and refrain from the wrong.  The applicant was mentally responsible for his acts and had the mental capacity to understand and participate in separation board proceedings and in any action taken in his case.  He had no mental or physical disease or defect that would warrant disposition through medical channels.

6.  On an unknown date, the applicant's commander notified him that he was being considered for separation under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuals).

7.  On 7 April 1961, the applicant submitted a voluntary statement waiving his rights to consult with counsel and to have his separation case heard before a board of officers in order to accept discharge.  Additionally, he stated he was requesting separation for the convenience of the government and that this decision was his choice.  He states that he had contacted the CID on his own initiative and had been to the post mental hygiene clinic.  He concluded his statement by asking that his voluntary request for separation be taken into consideration when reaching a decision on his characterization of service.

8.  In a separate statement, he 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.

9.  On 10 April 1961, the applicant's commander recommended discharge under the provisions of Army Regulation 635-89 for homosexuality.

10.  On 17 April 1961, the intermediate commander concurred with the applicant's commander and recommended separation.  On 24 April 1961, the approval authority approved the discharge recommendation directing the issuance of an undesirable discharge.

11.  On 4 May 1961, the applicant received an Undesirable Discharge Certificate and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his discharge was under the provisions of Army Regulation 635-89 and that his rank upon discharge was private/pay grade E-1.

12.  On 12 June 1961, the applicant applied to the Army Discharge Review Board (ADRB) through his Congressman requesting that his discharge be upgraded.

13.  On 3 July 1961, the ADRB reviewed the records of the applicant, along with the regulations in effect at the time of discharge, and determined the applicant's discharge was appropriate and denied his appeal.

14.  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.
15.  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 pre-service, 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 Soldier does not desire to engage in or intend to engage in homosexual acts."

16.  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 Armed Forces.  In all other cases the type of discharge will reflect the character of the member's service.

17.  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.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so he can receive veterans' benefits.  Entitlement to veterans' benefits is not within the purview of this Board nor is it normally considered a basis for granting relief.

2.  The evidence shows the applicant admitted to participating in homosexual acts while on active duty.  He admitted that he did this several times on unspecified dates.  Such conduct was then, and continues to be, a basis for administrative separation from the military.  The fact that he voluntarily reported his homosexual encounters to CID is not evidence that his separation was erroneous or unjust.  In fact, he voluntarily submitted a letter waiving a hearing before a board of officers.  As he admitted to participating in homosexual acts, a psychiatrist diagnosed him with being a sexual deviate with overt homosexuality.

3.  The applicant voluntarily submitted statements waiving his right to a hearing before a board of officers.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects the misconduct that resulted in his discharge.

4.  Based on his admittance that he was involved in homosexual acts, 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.

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

6.  The applicant did not provide evidence to show his statements were made under duress or that another person, whom he alleges also had the same last name, committed the homosexual acts ultimately leading to his discharge.  Again, he went to CID.  There is no evidence CID sought him.

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)                                         AR20090017107



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ABCMR Record of Proceedings (cont)                                         AR20090017107



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