IN THE CASE OF:	  

		BOARD DATE:	        12 MARCH 2009

		DOCKET NUMBER:  AR20090000445 


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 1964 undesirable discharge, characterized as under conditions other than honorable, be upgraded.

2.  The applicant states he was only 19 years old when he enlisted in the Army.  He states he had never been away from his home in Somerset, Kentucky and was home sick.  Seeking the quickest way out of the Army, the applicant states he listened to other people and lied about being a homosexual and that he had engaged in a homosexual act with another Soldier.  The applicant states that he has now gotten his life together, joined a church, and is currently in deacon training.  He states he owns his own construction business and would like to have his discharge upgraded so he can be a better citizen.

3.  The applicant provides no additional evidence in support of his request. 

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.  Records available to the Board indicate the applicant was born on 
21 September 1945 and enlisted in the Regular Army on 1 October 1964 for a period of three years.  He was assigned to Fort Knox, Kentucky, approximately 116 miles from Somerset, to undergo basic training.

3.  Documents associated with the applicant’s administrative separation were not available to the Board.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that on 8 December 1964, after 2 months and 8 days of active Federal service, he was discharged under the provisions of Army Regulation 635-89.  His service was characterized as under conditions other than honorable.  His DD Form 214 indicates he received an SPN (separation program number) of 257 (Unfitness, Homosexual Acts).

4.  Army Regulation 635-89, in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts.  Individuals involved in isolated episodes stemming solely from immaturity, curiosity or intoxication were excluded, but were to be eliminated under other regulations if appropriate.  Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated Class I.  Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated Class II.  Class III applied to individuals who had committed only pre-service homosexual acts.  An undesirable discharge was normally considered appropriate for Class II cases.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued.  A general or 
honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who 
had performed outstanding or heroic service or if an individual had served for an 
extended period of time and the separation authority determined that such action was in the best interests of the service.  In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation.



5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

6.  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 contention that his undesirable discharge should be upgraded because he was young, was homesick, and lied about being a homosexual, has been carefully considered.  However, there is insufficient evidence to support this claim.  The applicant was 19 years old at the time he entered active duty and not unlike many other young Soldiers who were experiencing being away from home for the first time.

2.  There are no facts and circumstances concerning the specific events that led to the applicant’s discharge from the Army.  However, the applicant’s SPN suggests the basis for the separation was a homosexual act which would have warranted an undesirable discharge.  Further, there is no indication there was any error or injustice associated with his separation processing.  Absent evidence to the contrary, it is presumed that the applicant’s separation processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that the rights of the applicant were protected throughout the separation process.  

3.  The applicant’s desire to be a good citizen and his achievements since being discharged from the Army more than 44 years ago are commendable; however, they do not serve as a basis to upgrade the characterization of his properly executed discharge.




4.  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.

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.



      __________XXX____________
               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)                                         AR20090000445



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ABCMR Record of Proceedings (cont)                                         AR20090000445



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