BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110015196 


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 undesirable discharge be upgraded.

2.  He states he entered the Army on his 17th birthday.  While in the Army, he realized his strong attraction for men and was stunned.  He was feminine and took reproaches the best he could.  The time finally came when he could no longer deal with the jibes, taunts, innuendos, and confrontations from the “guys,” so he went absent without leave (AWOL) on 6 April 1962. 

3.  He went to see the chaplain upon his return on 17 April 1962.  He told the chaplain about what was happening to him, and that he thought he was gay.  Somehow, his commander, captain (CPT) L, found out and his life in the unit became unbearable.  He was discharged for the good of the service, and for his own good. 

4.  His undesirable discharge was due to his homosexuality and not his work performance.  The military was not in a position to give him counseling and he was not allowed to remain in the Army because of his sexuality.  

5.  He contends if there had been regulations in place in which he could have continued to serve his country, he would have been a very successful Soldier and a credit to the military.  He now has the stigma of less-than-honorable service to his country.  Since becoming a civilian, he has been able to overcome the stigma of homosexuality.  He earned two baccalaureates, two masters, and a PhD in Computer Science.  He is a tenured retired professor and would like to complete his life with the sense of knowing he was not a failure in the military.
6.  He states he has served his country many years as an educator and would like to think, given the opportunity, he could have served his country in the military with the same honorable distinction, not tainted by his sexual orientation.  

7.  The applicant provides:

* his enlistment contract
* a DA Form 20 (Enlisted Qualification Record)
* court-martial documents
* a copy of his separation physical examination
* discharge orders
* his 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.  His military records show he enlisted in the Regular Army on 25 April 1961 for a period of 3 years.  After the completion of training, he served in military occupational specialty 768.10 (General Supply Specialist).  

3.  His record contains a DA Form 24 (Service Record) which shows the highest grade he attained while serving in the Army was private first class/E-3 on 
29 January 1962.

4.  Section 4 (Chronological Record of Military Service) of his DA Form 24 shows he received ratings of “excellent” and “good” in both conduct and efficiency throughout his military career.  

5.  A DA Form 26 (Record of Court-Martial Conviction) indicates he was tried on 19 September 1961, by Summary Court-Martial for going AWOL from 11 to 
12 September 1961.  He was sentenced to forfeiture of $20.00 for one month and reduced to the grade of private/E-1.

6.  His record contains a DA Form 19-24 (Statement), dated 27 April 1962.  This document shows that during an interview with a criminal investigator, the applicant acknowledged that he and another Soldier consensually engaged in oral and anal sodomy between the period 6 and 17 April 1962.  The applicant admitted to being told by his commanding officer, the chaplain, and the Judge Advocate section that if he admitted to having homosexual acts, he would be separated from the service without punishment or a dishonorable discharge.  When asked if he was a homosexual, he replied that he did not know.  

7.  On 9 May 1962, he was tried by Special Court-Martial for being AWOL from 
6 through 17 April 1962, and for behaving disrespectfully toward CPT L, his superior officer on 28 April 1962 by saying in a loud voice, “I will go to the stockade before I’ll return to the mess hall to do KP (Kitchen Police),” or words to that effect." 

8.  His sentence consisted of confinement to hard labor for 6 months, reduction to the grade of private/E-1, and a forfeiture of $25.00 pay for 6 months.  The sentence was approved except for the portion pertaining to confinement, which was suspended for 6 months.  

9.  On 21 May 1962, a neuropsychiatric examination was performed on the applicant.  The psychiatrist made note of the following:

    a.  Pertinent History – The applicant was referred by his unit commander prior to a possible separation under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).  The unit reported that on occasions the applicant had displayed arrogance, vehemence, and disrespect for authority.  The doctor also noted that although the applicant had admitted to homoerotic acts with only one man, it was apparent from the interview he derived full pleasure from the act to the point of considering staying away from the military.  

    b.  Mental Status – It was determined that the applicant was not suffering from a psychosis or psychoneurosis.  He appeared to be an effeminate male lacking proper masculine identification and prone to engage in overt homosexual acts.  

    c.  Diagnosis and Findings – He was diagnosed as having an overt sexual deviation toward homosexuality.  The psychiatrist found the applicant to be a true and confirmed homosexual, who was not making the claim for the purpose of avoiding military service.  His condition was not amenable to rehabilitation.

    d.  Recommendation – The applicant was recommended for separation under the provisions of Army Regulation 635-89. 

10.  On 24 May 1962, the applicant’s commanding officer recommended that he be discharged from the military service for actively engaging in homosexual activities with another Soldier in the unit.  

11.  His record contains two statements which show he had been counseled and advised on the basis for the recommended separation action.  He elected not to submit a written statement on his own behalf.  He was afforded the opportunity to be represented by counsel; however, he waived his right to counsel and a hearing before a board of officers and accepted discharge for the good of the service.  

12.  He acknowledged that he understood that he might be discharged under conditions other than honorable, that he might be deprived of many rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the character of discharge received may have a bearing.

13.  Section 6 (Time Lost under the Manual for Courts-Martial 1951 and Subsequent to Normal Date Expiration Term of Service) of his DA Form 24 shows he was placed in military confinement for 29 May to 5 June 1962.  

14.  On 5 June 1962, the approval authority approved the separation action and directed the applicant be discharged from the Army under the provisions of Army Regulation 635-89 and be furnished an Undesirable Discharge Certificate.  

15.  On 8 June 1962, he was discharged under the provisions of Army Regulation 635-89, under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  He had served 1 year and 25 days of active military service, with 21 days of time lost due to AWOL and pre-trial confinement.  His DD Form 214 shows he was assigned Separation Program Number (SPN) 257 (Unfitness - Homosexual Acts).

16.  Special Court-Martial Order Number 2, issued by 5th Infantry Division (Mechanized) on 18 June 1962, set aside the finding of guilty and dismissed the charge of AWOL from 6 through 17 April 1962.  The order contains a stamped entry indicating his personnel records could not be located to file the document.

17.  Army Regulation 635-89, in effect at the time, governed separation of homosexuals.  It stated personnel would be discharged under other than honorable conditions if the case fell within Class II.  Class II consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

18.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service.  The SPD code JFF specifies the narrative reason for discharge as Secretarial Authority.  The authority for discharge under this SPD is paragraph 5-3 of Army Regulation 635-200.

19.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.

20.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" SPD Code JFF)
* characterization of the discharge to honorable
* the reenlistment (RE) code to an immediately-eligible-to-reenter category

21.  For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:

* the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct

22.  The memorandum further states that although each request must be evaluated on a case-by case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.

23.  The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is Department of Defense (DoD) policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted.  Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DoD regulations implementing various aspects of DADT [or prior policies] were valid regulations during that same or prior periods.  Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the psychiatrist found the applicant to be a true and confirmed homosexual, who appeared to be an effeminate male lacking proper masculine identification and prone to engage in overt homosexual acts.  

2.  His record shows he received ratings of “excellent” and “good” in both conduct and efficiency throughout his military career, and he was convicted once by special court-martial for going AWOL for 8 days and stating he refused to do KP again.  The charge of AWOL was dismissed after his separation from the military and the remaining conviction consisted only of a disrespectful comment pertaining to not performing KP.  

3.  A Soldier would normally not be court-martialed for an offense such as this.  In fact, the gravity of this offense was so minor that his sentence to 6 months confinement was suspended and the charge of AWOL was later dropped.  He also had one day of AWOL in 1961, for which he received a summary court-martial.  Under today's standards, a summary court-martial is nothing more than company level nonjudicial punishment, and therefore, it does not rise to the level of an aggravating factor.  There is no other evidence of any other aggravating factors such as misconduct.

4.  His record shows that days after his court-martial, as a result of his admission to consensual homosexual acts, his commander recommended he be separated under the provisions of Army Regulation 635-89 which required the Soldier be given an under other than honorable conditions discharge.  He was also placed in military confinement after his admission  

5.  The applicant's discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of his discharge was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

6.  Nevertheless, the law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge, RE Code, and SPD code changed.

7.  In view of the foregoing, it would be appropriate to grant him an honorable discharge and issue him a new DD Form 214 with the reason shown as Secretarial Authority, an RE code of 1, and an SPD code of JFF.

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.  issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), and an RE code of 1 on 8 June 1962; and

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 8 June 1962.




      _______ _   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)                                         AR20110015196





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ABCMR Record of Proceedings (cont)                                         AR20110015196



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