IN THE CASE OF:	  

		BOARD DATE:	    4 May 2010

		DOCKET NUMBER:  AR20090019165 


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 her under other than honorable conditions discharge to general or honorable. 

2.  The applicant states the following:

     a.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the reason for discharge was "homosexual acts."

     b.  She was not caught in the act.

     c.  She confessed to being gay and stated the name of her girlfriend at the time.   

3.  The applicant provides the following:

* a copy of her DD Form 214
* a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate)
* a copy of her Social Security card

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 entered active duty on 28 October 1980 and began training for military occupational specialty 95C (Law Enforcement).  

3.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate) shows, on 
18 February 1981, the applicant was informed she was suspected of lewd and indecent acts with another and sodomy.  She waived her rights to talk to a lawyer prior to making a statement and to make a statement with a lawyer present.  

4.  A DA Form 2823 (Sworn Statement) shows the applicant admitted to committing homosexual acts with another Soldier on 7 February 1981 and 
14 February 1981.  

5.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted non-judicial punishment (NJP) for unauthorized absence from her unit.  Her punishment was forfeiture of $116 for one month, 14 days of restriction to the company area, and 14 days of extra duty.

6.  On 27 February 1981, the applicant's immediate commander notified her of his intent to initiate separation action in accordance with chapter 13 or 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct--other acts or patterns of misconduct.  

7.  A DA Form 3822-B (Report of Mental Status Evaluation) shows the applicant was evaluated for discharge for homosexuality and found to be separable under paragraph 14-33a(3) of Army Regulation 635-200.

8.  The applicant acknowledged receipt of the notification of intent to initiate separation, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to her, the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that she could expect to encounter substantial prejudice in civilian life if she received a general discharge under honorable conditions and that, as the result of a discharge under other than honorable conditions, she could be ineligible for many or all benefits as a veteran under Federal and State laws.  She waived her right to consideration of her case by a board of officers, her right to personal appearance before a board of officers, her right to submit statements on her behalf, and her right to representation by counsel.

9.  On 16 March 1981, the separation authority approved the applicant’s discharge for misconduct--homosexual acts under the provisions of paragraph 14-33a(3) of Army Regulation 635-200 and directed the applicant receive a 
DD Form 794A.  On 18 March 1981, the applicant was discharged accordingly.  She completed 4 months and 21 days of creditable active military service.

10.  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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33a(3), in effect at the time, states members who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication normally will not be processed for discharge because of homosexual acts.  However, if other conduct is involved, members may be considered for discharge for other reasons set forth in this regulation.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.  The applicant's request for upgrade of her discharge was carefully considered and not supported by the evidence in this case.
2.  The evidence of record confirms that by her own admission, the applicant engaged in homosexual acts on more than one occasion.  As a result, she was separated under the provisions of paragraph 14-33a(3) of Army Regulation 
635-200.  Her discharge was accomplished in accordance with the applicable regulation and her rights were protected throughout the process.  Therefore, the applicant is not entitled to upgrade of her discharge.

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)                                         AR20090019165





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ABCMR Record of Proceedings (cont)                                         AR20090019165



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