IN THE CASE OF:	  

		BOARD DATE:	    2 December 2010

		DOCKET NUMBER:  AR20100016277 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he was unjustly discriminated against because his sexual preferences had nothing to do with his ability to perform his duties. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 was born on 22 March 1953 and enlisted in the Regular Army in Denver, Colorado on 21 May 1975 for a period of 3 years.  He completed his basic training at Fort Polk, Louisiana and his advanced individual training as a personnel actions specialist at Fort Jackson, South Carolina before being transferred to Fort Lewis, Washington for his first and only duty assignment.

3.  On 11 March 1977, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO).

4.  On 29 July 1977, NJP was imposed against the applicant for the wrongful transfer of marijuana to another Soldier.

5.  On 5 August 1977, NJP was imposed against the applicant for being disrespectful in deportment towards a superior NCO.

6.  On 11 August 1977, the applicant underwent a mental status evaluation and he was diagnosed as having a sexual orientation disturbance.  The evaluation indicates that information obtained from the applicant suggested that he was a homosexual and that these tendencies resulted in numerous problems in the unit.

7.  On 17 August 1977, the applicant’s commander notified him that he was initiating action to separate him from the service for unsuitability under the provisions of Army Regulation 635-200, paragraph 13-5b (5) due to homosexual tendencies.

8.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 29 August 1977 and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 7 September 1977 under the provisions of Army Regulation 635-200, paragraph 13-5b(5) for unsuitability due to homosexual tendencies.  He had served 2 years, 3 months and 17 days of total active service.

11.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for separating enlisted personnel for unfitness.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave, homosexual acts or tendencies and use and/or possession of a controlled substance.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

2.  The applicant’s contentions were noted.  However, they are not sufficiently mitigating to warrant relief when considering his overall undistinguished record of service. 

3.  The available evidence shows no acts of discrimination and the applicant failed to provide any such evidence.  However, the evidence does show he committed numerous acts of misconduct that had nothing to do with discrimination or his sexual preference.  

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)                                         AR20100016277



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ABCMR Record of Proceedings (cont)                                         AR20100016277



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