IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120001509 


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 (UD) be upgraded to an honorable discharge (HD) due to repeal of the Don’t Ask, Don’t Tell (DADT) policy.

2.  The applicant states the homosexual allegations against him were unproven, untrue, and just a convenient way to discriminate against him as a black Soldier. He is now and always has been heterosexual.  He had no prior misconduct or disciplinary actions and an upgrade is warranted in part due to the repeal of DADT.

3.  The applicant provides copies of three DD Forms 214.  

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 1962 with 1 year, 
11 months, and 24 days of prior U.S. Army Reserve (USAR) and initial active duty for training service.

3.  On 18 April 1963, an incident occurred between the applicant and a fellow Soldier in the enlisted quarters of the 4th Missile Battalion, 55th Artillery Regiment, Thule Air Base, Greenland.  

4.  The Office of Special Investigations (OSI) investigated the incident and the record contains statements from eight Soldiers who witnessed various portions of the incident, including the Soldier identified by the investigating officer as the victim.  Taken together, the statements describe the incident as follows.  While sitting in the dayroom of the barracks the applicant stated he was going to "get a piece of a—" from the victim.  The applicant then proceeded to the victim’s room. His fellow Soldiers followed moments later.  Though none of the witnesses stated they saw the act of penetration, several witnesses saw the victim with his pants and shorts down at his ankles.  The victim was bent over at the waist and the applicant was positioned behind him.  The fly of applicant’s trousers was open and he had an erection.  The victim was also seen using a rag to wipe off the applicant’s penis. 

5.  The victim admitted having homosexual relations and that some were consensual and some were not consensual with several other service members including the applicant.  The victim stated the applicant had on a previous occasion attempted to have anal sex with him, but he was unable to penetrate him so the applicant had him perform oral sex at that time.  On the date in question, the applicant had told him he would force him to have anal sex and on that occasion did penetrate his anus.  At least one of the witness statements described the victim as in "shock" after the incident.  

6.  OSI concluded there was sufficient evidence to support separation actions against the applicant and the victim for homosexual acts.  

7.  The applicant's command initiated separation action for homosexuality and transferred the applicant to Brooke General Hospital, Fort Sam Houston, TX for a medical evaluation.

8.  The applicant underwent a psychiatric examination on 23 June 1964.  The attending physician stated the applicant denied engaging in any overt homosexual acts prior to or during his period of service.  The applicant reported having an active or overactive heterosexual life and "having" to marry his wife.  He stated he had been drinking with several members of his unit and talking about a fellow Soldier reported to be a homosexual though he did not recall any actual sexual activity.  The attending physician stated there was no evidence that the applicant was a "hardened" homosexual; however, the statements from the alleged victim and members of the applicant's unit combined with the applicant's lack of a desire to defend himself concerning the charges against him left little doubt that a homosexual act had taken place.  It was recommended that applicant be discharged for homosexuality with a general discharge (GD).

9.  The applicant's chain of command processed the applicant for separation as a Class II homosexual and recommended the issuance of a UD.

10.  The applicant acknowledged the separation action and waived his rights to military counsel, a board of officers, and to make a statement on his own behalf.

11.  The applicant was discharged with a UD under Army Regulation 635-89 (Personnel Separations - Homosexuality) on 30 July 1964.  He had completed 2 years, 6 months, and 12 days of creditable service during the period under review.

12.  The available record does not contain any record of conduct and efficiency ratings and does not show award of any personal decoration.

13.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

14.  Army Regulation 635-89, in effect at the time, set forth the policies and procedures for separation of Soldiers for homosexuality.  It stated personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity, and their prompt separation was mandatory.  It stated enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate except that an honorable or General Discharge Certificate could be issued when an individual had been awarded a personal decoration or if warranted by the particular circumstances in a given case.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

	b.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD; and

	c.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  At the time of the applicant's service a UD was considered appropriate.

16.  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, U.S. 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.

17.  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" with a Separation Program Designator (SPD) Code of "JFF"
* characterization of service to honorable
* the RE code to an immediately-eligible-to-reenter category

18.  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

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

20.  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 was 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 period 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.

21.  The Uniform Code of Military Justice (UCMJ) is applicable to all military members worldwide and describes the offenses for which military members may be found criminally responsible.  The version of the UCMJ in effect at the time of applicant’s discharge recognized sodomy, whether consensual or by force and irrespective of the gender of the parties, as an offense under Article 125.  It also recognized the offenses of indecent acts with another and indecent exposure as offenses punishable under Article 134, as well as offenses to good order and discipline generally.  The current version of the UCMJ maintains sodomy as an offense under Article 125, though its applicability to acts of purely private consensual sodomy, regardless of the gender of the parties involved, is constitutionally suspect.  The current version of the UCMJ continues to recognize the offenses of indecent acts with another and indecent exposure as offenses under Article 120, as well as offenses against good order and discipline generally under Article 134. 

22.  An attempt was made to contact the applicant, to ask him if he would accept a change in the reason for his discharge from homosexual to misconduct.  Those attempts were not successful in reaching the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The available records do not contain and the applicant has not provided any evidence to substantiate his contention that his discharge was the result of racial discrimination.

2.  While the applicant continues to assert that he is not a homosexual, the preponderance of evidence shows he did in fact engage in at least one homosexual act with a fellow Soldier and the act may have been accomplished by force or coercion.  Furthermore, the applicant's actions violated the UCMJ, as indecent acts, indecent exposure, and conduct prejudicial to good order and discipline.  

3.  Had the applicant’s separation action involved nothing more than an admission of homosexuality, relief would be appropriate given the current policy. However, the applicant’s behavior without reference to his sexuality was and is misconduct.  Therefore, no relief is warranted.

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)                                         AR20120001509



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ABCMR Record of Proceedings (cont)                                         AR20120001509



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