IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120020583 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* he served two tours in Vietnam and received multiple awards including the Bronze Star Medal, Purple Heart, Air Medal, Vietnam Service Medal, and Parachutist Badge
* he completed officer and airborne training; he served his country faithfully and he was an effective leader to the troops he commanded
* the correction he seeks is based on repeal of the "Don't Ask, Don't Tell (DADT)" law
* there were unproven allegations made against him and he was forced through the absence of any other alternative to take an under other than honorable conditions discharge
* his service to his country and the life he has lived since his discharge clearly point to his character and honor; he has paid dearly for his service to our country without acknowledgment 
* he is currently in a nursing home rehabilitation center following surgery for cancer; he has had four heart blockages and numerous health issues

3.  The applicant provides a civilian medical status/catheterization report and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110002329, on 20 October 2011.

2.  The applicant provides a new argument related to the DADT that was not previously considered.  Therefore, it is considered new evidence and although not submitted within one year of the original Board decision, it warrants consideration by the Board as an exception to policy.

3.  The applicant enlisted in the Regular Army on 22 October 1964 and he held military occupational specialty 11F (Infantry Operations and Intelligence Specialist).

4.  He successfully completed the Infantry Officer Candidate School from April 1965 through April 1966.  He was honorably discharged on 27 April 1966 for the purpose of accepting a commission.

5.  On 28 April 1966, he was appointed as a Reserve commissioned officer with concurrent call to active duty.  He subsequently completed the Basic Airborne Course on 3 August 1966.

6.  He served in Vietnam from 10 January 1967 to 4 January 1969.  He was awarded or authorized the:

* Bronze Star Medal
* Purple Heart
* Air Medal
* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Parachutist Badge
* Two overseas service bars

7.  On 19 July 1968, agents of the Criminal Investigation Division, commonly known as CID, investigated the applicant for possible homosexual activity, 

specifically, forcible sodomy and indecent lewd acts on two individuals.  The CID report shows the following:

	a.  The applicant got into bed with Lieutenant D and performed an act of oral sodomy.  He had previously fondled Lieutenant D's ----- while he was asleep in the applicant's office.  He also fondled Lieutenant B's ----- while taking a shower. Lieutenants D and B repulsed the applicant.  They both complained to the adjutant.  Lieutenant D complained the applicant continuously made homosexual advances toward him and requested another billet.  Lieutenant B stated the applicant forcibly grabbed his ----- while taking a shower.

	b.  The applicant verbally denied all allegations and declined to submit a written statement; however, he stated he intended to submit a request for resignation to avoid embarrassment to himself and the Army.  The report concluded the applicant wrongfully committed indecent, lewd, and lascivious acts with another.

8.  On 27 July 1968, he underwent a psychiatric evaluation because of alleged homosexual acts.  No mental discord was found that warranted disposition through medical channels and he was psychiatrically cleared for resignation.

9.  On 18 November 1968, after consulting with counsel, the applicant voluntarily submitted his resignation under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), for the good of the service.  He stated:

* he did not desire to appear before a court-martial or a board of officers
* he had not been the subject of coercion with respect to this resignation and he had been advised and fully understood the implications of this action
* he acknowledged that if his resignation were accepted, it might be considered as being under other than honorable conditions and an Under Other Than Honorable Conditions Discharge Certificate might be issued

10.  He elected to submit a statement in his own behalf.  He stated his military career began on 22 October 1964.  He stated he had completed airborne training and his assignments included serving as an executive officer, assistant S-1 and S-4 officers, and commanding officer.  During his tour of duty in Vietnam he voluntarily extended his tour for 6 months.  He also listed his awards.  He further stated, in effect, he was requesting the issuance of an honorable discharge on the basis of his conscientious service and past military record.

11.  On 24 December 1968, the appropriate separation authority accepted his request for resignation and directed his separation under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality), paragraph 9, with an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 7 January 1969.

12.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-89, paragraph 9 with an under other than honorable conditions discharge.  He completed 2 years, 8 months, and 10 days of net active service this period with no time lost.

13.  On 28 November 1972, the Army Discharge Review Board denied his request for a change in the type and nature of his discharge.

14.  Army Regulation 635-89, in effect at the time, prescribed the authority for the disposition of military personnel who were homosexuals, who engaged in homosexual actions, or were alleged to have engaged in such acts.  Paragraph 9 afforded an officer the opportunity to submit a resignation for the good of the service due to homosexuality.  Officers submitting either qualified or unqualified resignations would be afforded counseling.  Commanders could recommend an honorable or general discharge if the officer concerned had performed outstanding or heroic military service or had performed service over an extended period and the commander determined that the best interests of the service would be served thereby.  When the officer's resignation was accepted, he could be furnished an honorable, general, or under other than honorable conditions discharge as determined by Headquarters, Department of the Army (HQDA).  The following classes of homosexuality were defined as follows:

	a.  Class I homosexual acts are those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.

	b.  Class II homosexual acts as those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.  Class II also included all cases falling within Class I in which it was determined not to prefer charges or, if charges were preferred, not to refer them to a court-martial for trial.

15.  Army Regulation 635-120, chapter 5, prescribed the policies and procedures for officers to submit a resignation for the good of the service as a class II 

homosexual under the provisions of Army Regulation 635-89.  A resignation for the good of the service when approved by HQDA was normally accepted as being under other than honorable conditions with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

16.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  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 (DRB's) 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.

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

* narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF
* characterization of the service to honorable
* the reentry eligibility (RE) code to an immediately-eligible-to-reenter category

19.  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

20.  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.

21.  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 period.  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 of record shows the applicant was investigated for forcible sodomy and indecent lewd acts on two individuals.  Both offenses were considered Class I homosexual acts since they involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.  However, the fact that court-martial charges were not preferred made both offenses a Class II homosexual misconduct.

2.  Nevertheless, the misconduct was committed and although he denied the allegations, he submitted a request for resignation that was ultimately approved by HQDA.  Accordingly, on 7 January 1969, the applicant was discharged under the provisions of Army Regulation 635-89 by reason of homosexuality with an under other than honorable conditions discharge.

3.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

4.  The law has since changed and the DADT law has been repealed, and current standards may be applied to previously-separated Soldiers as a matter of equity, but only when appropriate should Soldiers separated due to homosexuality now have their reason for discharge and characterizations of service changed.

5.  For the above upgrade to be warranted, two conditions must have been met: the original discharge was based solely on DADT or a similar policy in place prior 

to enactment of DADT and there were no aggravating factors in the record, such as misconduct.  In the applicant's case, there were aggravating factors in the form of misconduct.  As such, he does not qualify for an upgrade under the DADT policy.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110002329, dated 20 October 2011.



      ____________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)                                         AR20120020583



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ABCMR Record of Proceedings (cont)                                         AR20120020583



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