IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013556 


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, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states, "The Army was saying I was gay, but I am not."  He further states he has lived with this for all of these years and needs to get it right so he can go on with his life.

3.  The applicant provides a handwritten summary of his post-service employment, volunteer work, affiliations with church and community organizations, and references.

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 on 19 January 1960.  He completed initial entry training and was awarded military occupational specialty 111.10 (Light Weapons Infantryman).  On 6 April 1962, he reenlisted for 6 years.

3.  He accepted nonjudicial punishment on 15 June 1963 for behaving with disrespect and threatening physical violence against a noncommissioned officer by pushing him.

4.  On 11 February 1965, he was convicted by a special court-martial for being absent without leave (AWOL) from 28 September 1964 to 22 October 1964 and from 24 October 1964 to 1 December 1964.

5.  The Criminal Investigation Division (CID) initiated an investigation on 19 April 1965 upon the applicant's referral to the Mental Hygiene Consultation Service.  On 22 April 1965, he was examined by the Mental Hygiene Consultation Service.  The reason for his referral was that he was accused of making homosexual advances to another Soldier in his unit.  During the examination, he admitted he began to engage in homosexual acts during his assignment in Germany.

6.  On 4 May 1965, the applicant's unit commander recommended that he be discharged from military service under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuals).  The unit commander cited the psychiatric evaluation and the CID Report as the reasons for the elimination action.

7.  The applicant consulted with legal counsel and was notified of the proposed separation action under the provisions of Army Regulation 635-89 for homosexuality.  He was also advised of his right to a hearing before a board of officers or to waive this right and submit a written statement in his own behalf.  He elected to waive both of the above rights and the right to counsel.  He acknowledged that he understood he might be deprived of his rights as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life as a result of discharge under other than honorable conditions.

8.  On 20 May 1964, the appropriate authority approved the recommendation and directed that he be furnished an undesirable discharge.  On 1 June 1965, he was discharged accordingly.  His DD Form 214 shows his service was characterized as under other than honorable conditions and that he had accrued 140 days of lost time.

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

10.  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 as 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 as 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.

11.  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.

12.  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 contends that his discharge should be upgraded because he was not homosexual.

2.  He admitted to engaging in homosexual acts while in Germany and was accused of making advances toward another Soldier.  He did not deny the accusation and was given the opportunity to submit a statement in his own behalf which could have cleared him of any wrongdoing; however, he waived that right.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His record of indiscipline includes nonjudicial punishment for disrespecting and assaulting a noncommissioned officer, a court-martial conviction, and 140 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  The applicant's claim of good post-service conduct is insufficient to mitigate his record of misconduct.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20100013556



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ABCMR Record of Proceedings (cont)                                         AR20100013556



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