BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100027286 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show different information in the following:

* item 3 (Social Security Number (SSN))
* item 11c (Reason and Authority)
* item 21 (Home of Record (HOR) at time of Entry into Active Service)
* item 23a (Specialty Number and Title)
* item 23b (Related Civilian Occupation and Dictionary of Occupational Titles Number)
* item 25 (Education and Training Completed)

2.  The applicant states:

* he was discharged after being raped by his commanding officer while he was stationed in San Antonio, TX
* he was later attacked by a guy who offered to give him a ride when his vehicle ran out of gas
* the address on his DD Form 214 should read "614 R_D___ Street"
* item 23a on his DD Form 214 should have something in it because he did complete his training
* item 23b should read, "Orderly at Doctors Hospital in Houston, TX."
* item 25b should show he completed medic training, 13 weeks of x-ray technician training, and, he believes, training in substance abuse counseling

3.  The applicant provides no additional evidence.

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.  On 17 April 1971, the applicant completed a DD Form 398 (Statement of Personal History) which shows an SSN with beginning with "458."  His DD Form 398 shows "614 R_B___ Street" as his permanent mailing address.

3.  The applicant enlisted in the Army on 22 April 1971.  At the time of his enlistment, he was assigned a temporary identification number (TIN), which begins with the numbers "961" and is shown in item 1 (Service Number/SSAN) of his DD Form 4 (Enlistment Contract – Armed Forces of the United States).  Item 41 (Home of Record) shows 604 R_B___ Street as his HOR.

4.  A National Agency Check (NAC) Request was initiated on the applicant on 23 April 1971.  His DD Form 1584 (National Agency Check Request) shows the SSN beginning with the numbers 458 and it is the same number he contends should be shown in item 3 of his DD Form 214.  His DD Form 1584 also shows "614 R_B___ Street" as the present address of his parents at the time of his enlistment.

5.  The applicant's records show he completed basic combat training.  His records also show he was in advanced individual training (AIT) at Brooke Army Medical Center, Fort Sam Houston, TX.  His records do not show he ever completed AIT and/or was awarded a military occupational specialty (MOS).

6.  A Criminal Investigation Division Report of Investigation shows the applicant admitted to a past history of homosexuality on 17 November 1971 at the Mental Hygiene Consultation Service.  He was diagnosed as a sexual deviate-homosexual, a character disorder of long duration, unresponsive to rehabilitation with the military service.  The investigation further disclosed that the applicant first met and initiated a homosexual liaison with the individual with whom he was residing at the time on or about 10 September 1971.  In October 1971, on at least two occasions, he engaged in similar homosexual actions with another individual.

7.  On 3 January 1972, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He acknowledged receipt of the notification on 14 January 1972.  After consulting with counsel, he elected to submit a statement in his own behalf.  In his statement, he contended:

* homosexuality wasn't a new thing in our society
* he openly admitted to his commanding officer that he was practicing sodomy
* he was not gay until he met the individual with whom he was living
* he was in love with the man and that was one reason he was asking to be discharged from the Army
* he needed to go home and get his mind together
* consideration should be given to the type of discharge he was to receive
* without a general discharge he could not continue his education or get a good job

8.  The appropriate authority approved the recommendation on 26 January 1972. 
On 28 January 1972, the applicant was discharged under the provisions of Army Regulation 635-212, paragraph 6a(7), for unfitness, homosexual acts.  He received a General Discharge Certificate and a separation program number (SPN) of "257" (unfitness, homosexual acts).

9.  The DD Form 214 he received shows the following:

* item 3 – his TIN (beginning with the numbers "961")
* item 11c – "Army Regulation 635-89 (Personnel Separations - Homosexuality) and SPN 257"
* item 21 – "604 R_B___ Street"
* item 23a – "None"
* item 23b – "NA"
* item 25 – "None"

10.  Army Regulation 635-212, in effect at the time, was the authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(7) provided the policy and procedures for processing enlisted personnel for discharge by reason of homosexuality and homosexual acts previously contained in Army Regulation 635-89.  It applied to those cases in which personnel had engaged in one or more homosexual acts during military service and trial by court-martial was not considered as the course of action to be taken.

11.  Army Regulation 600-2 (Name and Birth Data, Social Security Account Number, and TIN), effective 1 July 1969, announced the use of the SSN in lieu of military service numbers.  A TIN would be issued during the pre-enlistment processing for entrance into the active Army to those individuals who did not have an SSN.  The TIN was a 9-digit number that always began with the number "9."  Upon receipt of an SSN, the TIN entry on all records would be lined through and the SSN would be entered.

12.  Army Regulation 635-5 (Personnel Separations – Separation Documents) is the authority for the preparation of the DD Form 214.  The regulation in effect at that time provides that in:

* item 3 – transcribe SSN from DA Form 2139 (Military Pay Voucher)
* item 11c – the authority for transfer or discharge will be entered followed by the SPN and a descriptive reason for transfer or discharge; discharge for unfitness and homosexual will not be stated in words on the DD Form 214
* item 21 – enter HOR at the time of entry into active duty as shown on enlistment or induction record regardless of place physically located at time of entry on active duty
* item 23a and 23b – enter primary MOS code number and title.  If the specialty represented by the MOS has a related civilian occupation, enter in item 23b the appropriate job title and code number from the dictionary occupational titles; if not applicable, enter "NA"
* item 25 – enter service schools, including major courses which were successfully completed, and military sponsored courses completed in civilian schools and colleges during period covered by the DD Form 214 being prepared

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  There is a discrepancy regarding the applicant's HOR.  His DD Form 398 shows one address, his DD Form 4 shows a second address, and his application states a third address.  The HOR shown on his DD Form 214 is also the HOR shown on his DD Form 4, which is in accordance with Army Regulation 635-5.  Additionally, there would be no benefit to changing the street address in the HOR shown on his DD Form 214 almost 40 years after his discharge.

2.  There is no evidence in the available record showing the applicant was awarded an MOS prior to his discharge from the Army.  The entries "None" and "NA" are properly shown in items 23a and 23b of his DD Form 214.

3.  There is also no evidence in the available record that shows he ever completed any significant education and/or training that should be shown on his DD Form 214.  The entry "None" appears to be correct and he has provided no evidence to the contrary.

4.  There is evidence showing the applicant had an SSN at the time of his enlistment and it is shown in his official records.  Therefore, the TIN shown in item 3 of his DD Form 214 should be deleted and replaced with his SSN beginning with the numbers "458."

5.  The applicant was not discharged under the provisions of Army Regulation 635-89.  While there is no evidence in his record showing he was raped by his commanding officer while he was in the Army, he was discharged under the provisions of Army Regulation 635-212.  This information should be entered in item 11c of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show his SSN beginning with the number "458" in item 3 and to show his reason and authority for discharge was Army Regulation 635-212, instead of Army Regulation 635-89 in item 11c.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 

much of the application that pertains to amending his DD Form 214 to change items 21, 23a, 23b, and 25.



      ___________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)                                         AR20100027286



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ABCMR Record of Proceedings (cont)                                         AR20100027286



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