BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100009724 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he served in the "Armed Forces US Army" honorably for 3 years and he did not receive a "commendation medal" from 1953 to 1958.

3.  The applicant provides a Certificate of Death and a statement dated 29 August 1958.

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 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 applicant’s 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.  With prior enlisted service in the Air Force and the Army, the applicant enlisted in the Army for 3 years on 15 November 1956.  He was awarded a personnel administrative specialist military occupational specialty.

4.  On 27 October 1958, charges were preferred against the applicant for committing sodomy with another Soldier on 29 August 1958.

5.  The facts and circumstances surrounding his discharge are unclear.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 29 November 1958 under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality) and he was assigned a 257 (Acceptance of a discharge as a result of board action (Class II Homosexual)) separation program designator.  He had completed 2 years and 15 days of net active service this period.  He was furnished an Undesirable Discharge Certificate.

6.  A review of the available records does not show that the applicant was ever recommended for award of the Army Commendation Medal. 

7.  On 2 April 1959 and 1 April 1964, the Army Discharge Review Board (ADRB) denied the applicant's appeals for an upgrade of his discharge.

8.  The statement the applicant submitted is a statement from an individual who describes the incident that took place bewteen the applicant and another Soldier.

9.  Army Regulation 635-89, in effect at the time, prescribes that authority and criteria, and procedures for the disposition of military personnel who are homosexuals and military personnel who engage in homosexual acts, or are alleged to have engaged in such acts.  It provides, in pertinent part, that personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory.  Enlisted members whose cases are processed under this regulation in the Class II category normally will be furnished an Undesirable Discharge Certificate.


10.  Paragraph 3-7a of Army Regulation 635-200 (Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  Paragraph 3-7b of Army Regulation 635-200 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.

12.  Army Regulation 600-8-22 (Military Awards) states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary it is presumed that the applicant was discharged in accordance with applicable laws and regulations in effect at that time and that the type of discharge directed was appropriate consideration all the facts of his case.

2.  His contentions have been noted; the fact that he was not awarded a "commendation medal" while he was in the Army is not a sufficient basis for upgrading his discharge.  He was discharged as a result of committing sodomy with another Soldier and his case was processed under Army Regulation 635-89. Soldier's whose cases are processed in the Class II category normally will be furnished an Undesirable Discharge Certificate.

3.  As previously stated, the applicant's records do not show that he was ever recommended for award of the Army Commendation Medal.  In the absence of a recommendation, it must be presumed that he failed to meet the established criteria for that award.

4.  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)                                         AR20100009724



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)