BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100022609 


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 undesirable discharge (UD) to a general discharge.

2.  He states it was unjust for the Army to discharge him for the stated reason of homosexuality.  He did not seek such a discharge and did not "tell" until the Army asked.  His term of service was 5 months and 23 days and he is not seeking this upgrade to gain entitlement to any additional benefits.  He simply wants the record to reflect a general, under honorable conditions, discharge.  

3.  He also states that after reviewing his records, they do not state that he was investigated by the Criminal Investigation Division (CID) because he was named by a newly-minted Reserve Officers' Training Corps officer who was gay.  The DD Form 2823 (Witness Statement), dated 13 March 1970, reveals the investigator interviewed his father and other contacts.  They were attempting to confirm an officer's orientation and he got caught up in their investigation.  This investigation, which included CID outing him in front of his company, caused him emotional distress.  But for the CID investigation, he would have likely served the Army honorably.

4.  He provides:

* DA Form 2823
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 show he enlisted in the Regular Army in pay grade E-1 on 7 November 1969, for 3 years.  He did not complete advanced individual training and he was never awarded a military occupational specialty (MOS).

3.  On 12 January 1970, a Report for Suspension of Favorable Personnel Actions was initiated against him for elimination under the provisions of Army Regulation 635-89 (Homosexuality).  

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 February 1970, shows he was admitted to the hospital on 20 February 1970 due to a drug overdose.

5.  A DA Form 19-32 (Military Police Report), dated 20 February 1970, shows the applicant was transported to the hospital on 19 February 1970 after intentionally inflicting injury to himself by ingesting approximately 12 Valium tablets prescribed to another service member.  

6.  A DA Form 2820 (Statement by Accused or Suspect Person), dated 12 March 1970, shows the applicant stated that he had been depressed lately, especially about problems at home.  He had been given a prescription for Valium, which he had filled, and took two pills the remainder of the afternoon.  He later took two more pills before going to bed.  He called home and his mother was angry and told him that when he was discharged not to bother to come home.  After the phone call he swallowed the bottle of pills without a second thought.  He did not take the pills to avoid duty.


7.  He provided a DA Form 2823, dated 13 March 1970, which shows an investigator stated that on 11 March 1970 the applicant's father had been advised by the applicant that action had been initiated to discharge him from the Army because of his homosexual problems.  The investigator also stated he interviewed a male friend of the applicant who claimed to have had a sex act with the applicant when he was on leave.

8.  A DA Form 2820, dated 17 March 1970, shows the Chief, Mental Hygiene Consultation Service, stated the applicant came to see him on the afternoon of 18 February 1970.  After speaking to the applicant he gave him a prescription for Valium.  He would not say the applicant would be the type to suddenly take the entire contents of the bottle.

9.  A Neuropsychiatric Service Certificate, dated 17 March 1970, shows the applicant was psychiatrically examined while a patient at the hospital.  He was diagnosed with a passive-dependent personality, chronic, moderate, manifested by dependent clinging to others, homosexual acting out, depressive features causing him to ingest the medication on the day of admission.  Predisposition was found to be severe, with a long history of such behavior.  His impairment for further military duty was marked, due to chronicity of symptomatology.  The condition was determined not to be in the line of duty and that it existed prior to service.  He was found, so far, free from mental defect, disease, or derangement as to be able, concerning the particular act charged, both to distinguish right from wrong, and to adhere to the right.  The evaluating psychiatrist found no disqualifying mental or physical defects warranting hospitalization or medical separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  

10. On 17 March 1970, after consulting with counsel, he acknowledged the investigation and possible discharge pending against him under the provisions of Army Regulation 635-89.  He waived his rights and agreed to receipt of a general or UD.

11.  On 30 March 1970, a Report for Suspension of Favorable Personnel Actions was initiated against him for illegally obtaining the telephone code number of the Recruiting Main Station and making several unauthorized phone calls to persons in other states with a bill amounting to approximately $400.00.

12.  On 8 April 1970, the Staff Judge Advocate advised the applicant's unit that they may want to add these statements and reinitiate the action for elimination, placing it under paragraph 6a(7)(2), Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), as charged for unfitness.

13.  On 10 April 1970, the applicant's unit commander recommended the applicant be eliminated from the service due to unfitness under the provisions of paragraph 6(a), Army Regulation 635-212, with a UD.  The unit commander stated the applicant had not adjusted to military life and the applicant claimed homosexual tendencies, as supported by the accompanying CID report.  

14.  On 11 April 1970, after consulting with counsel, he acknowledged the proposed action to separate him from the service under the provisions of Army Regulation 635-212.  He acknowledged he could be issued a general or UD and the results of the issuance of such a discharge.  He elected not to submit a statement in his own behalf.

15.  On 16 April 1970, the applicant's battalion and brigade commanders recommended approval of the applicant's separation.

16.  24 April 1970, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of a UD Certificate.

17.  He was accordingly discharged on 29 April 1970 in pay grade E-1 under the provisions of Army Regulation 635-212.  He was credited with completion of 5 months and 23 days active service.  

18.  Item 11c (Reason and Authority) of his DD Form 214 lists Army Regulation 635-212 (Administrative) and SPN (Separation Program Numbers) Code 28B.  

19.  Army Regulation 635-212, then in effect, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, a UD was normally considered appropriate.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, governed the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to a general discharge has been noted.  

2.  The evidence of record shows he enlisted in the Regular Army on 7 November 1969.  A CID report, dated 13 March 1970, mentioned he was being discharged from the Army for his homosexual problems.  On 12 January 1970, a FLAG was initiated against him for elimination under the provisions of Army Regulation 635-89.  He underwent a psychiatric evaluation and he was diagnosed with a passive-dependent personality disorder and homosexual acting outs.  He was cleared for any administrative decision deemed appropriate by the command.  

3.  On 8 April 1970, the Staff Judge Advocate advised that he should be eliminated under the provisions of Army Regulation 635-212 for Unfitness.  On 10 April 1970, his unit commander recommended be he eliminated under the provisions of Army Regulation 635-212.  After consulting with counsel, he acknowledged the proposed elimination action for unfitness and possible UD.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  

4.  He was discharged accordingly on 29 April 1970.  He was issued a DD Form 214 listing SPN 28B.  SPN 28B identifies an individual separated for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

5.  After careful consideration of the applicant's discharge, it appears his discharge was and is improper.  The evidence of record shows that while he was not separated for homosexuality, he was separated for unfitness, frequent incidents of a discreditable nature with civil or military authorities.  However, the commander's recommendation for discharge listed the reasons for the recommendation as the applicant's not adjusting to military life and his claimed homosexual tendencies, neither of which fall under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.
6.  This constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, his discharge should be upgraded to a fully honorable discharge with a change to the narrative reason for separation to Secretarial Authority with a corresponding SPN of 21L.

BOARD VOTE:

___x_____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding the applicant’s general discharge under the provisions of Army Regulation 635-212 that was issued on 29 April 1970 and issuing him an honorable discharge by reason of Secretarial Authority and SPN 21L, with the same date; and

   b.  issuing him an Honorable Discharge Certificate from the United States Army, dated 29 April 1970 in lieu of the Undesirable Discharge he now holds.



      _______ _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)                                         AR20100022609





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022609



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1