BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017526 


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 upgrade of his undesirable discharge.

2.  The applicant states he was made to perform a homosexual act.  He also states he was told he could not get any rights or benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 he enlisted in the Regular Army on 14 October 1968 for a period of 2 years.  He did not complete initial entry training 


and he was not awarded a military occupational specialty (MOS).  The highest rank/grade he held during his tenure of service was private (PV1)/E-1.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  U.S. Army Missile and Munitions Center, Redstone Arsenal, AL, Special Court-Martial Order Number 34, dated 29 October 1969, shows the applicant was arraigned and tried for being absent without leave (AWOL) during the period from on or about 5 January 1969 until on or about 5 September 1969.  He pled guilty, was found guilty, and the sentence was adjudged on 8 October 1969.  He was sentenced to forfeiture of $76.00 per month for six months and to be confined at hard labor for six months.  No previous convictions were considered.  The sentence was approved and ordered duly executed.

4.  On 6 January 1970, the applicant completed a DA Form 2820 (Statement by Accused or Suspect Person) attesting to his homosexuality.  His records also contain witness statements from two commissioned and a noncommissioned officer indicating the applicant told them he was a homosexual.

5.  The applicant was advised by counsel of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality).  He chose not to make a statement in his own behalf and waived representation by counsel.  He acknowledged that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He acknowledged that he further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  He was also advised of the basis for his contemplated separation and its effect and the rights available to him.  The applicant personally made the choices indicated in the foregoing statement.

6.  On 20 January 1970, the appropriate authority directed the applicant's discharge under the provisions of Army Regulation 635-89 and directed the issuance of an Undesirable Discharge Certificate.

7.  On 27 January 1970, the applicant was discharged under the provisions of Army Regulation 635-89.  The applicant’s DD Form 214 shows he completed a total of 3 months and 27 days of active service characterized as under conditions other than honorable.  He was issued an Undesirable Discharge Certificate.  His DD Form 214 shows 240 days lost under 10 U.S.C. 972 [Title 10, U.S. Code, 


section 972] from 5 January 1969 thru 4 September 1969 and 107 days lost under 10 U.S.C. 972 from 10 October 1969 thru 26 January 19(69) [sic - should read 1970].

8.  Army Regulation 635-89, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  Personnel who voluntarily engaged in homosexual acts, irrespective of sex, were not permitted to serve in the Army in any capacity, and their prompt separation was mandatory.  In determining characterization of service to be furnished a member whose separation was provided for by this regulation, due regard was to be given to the member's current record of service and the particular circumstances which required his separation.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  On 6 January 1970, the applicant voluntarily admitted in a signed written statement that he was a homosexual.  Three witness statements contained in his records also show he admitted that he was a homosexual.

2.  The applicant was notified of the proposed action to separate him.  He consulted with counsel and was advised of his rights.

3.  On 20 January 1970, the applicant's discharge action was approved.  On 27 January 1970, the applicant was issued an undesirable discharge.  The available evidence indicates his rights were protected throughout the discharge process.

4.  There are no provisions for changing a properly issued DD Form 214 solely for the purpose of establishing eligibility for other programs or benefits.


5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090017526



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ABCMR Record of Proceedings (cont)                                         AR20090017526



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