IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20130000808 


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

2.  The applicant states he engaged in a homosexual act and he was accused of conduct triable by a court-martial.  He did not engage in any criminal behavior.  He was forced to resign because he was gay. 

3.  The applicant did not provide any evidence. 

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 AC85-07709, on 5 March 1986.

2.  The applicant provides a new argument which, although not received within 
1 year of the Board's original decision, was not previously considered by the Board.  

3.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and entered active duty on 4 September 1983.  He completed the Field Artillery Officer Basic Course.  He was assigned to Fort Carson, CO.

4.  In December 1984, a preliminary investigation by agents of the U.S. Army Criminal Investigation Command (CID) revealed while patronizing a local discotheque, the applicant danced with an enlisted male friend – Army private RDT.  He then solicited and exchanged phone numbers with the enlisted member.  The applicant also solicited a civilian to be with him in his privately owned vehicle (POV).  While both outside and inside the applicant's POV, the applicant French-kissed the enlisted male approximately 5 times.  The applicant also placed his hand on the male's inner left thigh while seated in the vehicle.  

5.  On 11 December 1984, during a subject interview, the enlisted male Soldier admitted he was homosexual and had engaged in anal and oral sodomy, actively and passively.  He stated that on 23 November 1984, at a gay bar, he was solicited by the applicant and that the applicant provided him with his home phone number, asked him out on dates, and danced with him several times.  He also maintained that the applicant French-kissed him outside the bar in his POV while touching the inside of his thigh through the clothing.  

6.  On 7 January 1985, court-martial charges were preferred against the applicant for one specification of wrongfully committing an indecent, lewd, and lascivious act with Private/E-1 RDT, and did therefore knowingly fraternize with an enlisted person, a conduct which was unbecoming of an officer and a gentleman and was disgraceful to the armed forces. 

7.  On 8 January 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 635-120 (Officer Transfers and Discharges), chapter 5.  In his request for resignation, he indicated:

* He did not desire to appear before a court-martial and he had not been subject to any coercion with respect to this resignation
* He was afforded the opportunity to present matters in explanation, mitigation, or defense of his case
* He understood if his resignation was accepted, it could be considered as under other than honorable conditions 
* He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* He understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  His immediate and intermediate commanders recommended approval of the resignation action with the issuance of a General, Under Honorable Conditions Discharge Certificate.

9.  The Commanding General, 4th Infantry Division, recommended approval of the voluntary request for resignation submitted by the applicant and that his service be characterized as general, under honorable conditions. 

10.  On 4 February 1985, a Department of the Army Ad Hoc Review Board convened and recommended that the resignation for the good of the service tendered by the applicant be accepted with discharge under other than honorable conditions.

11.  On 11 February 1985, the Deputy Assistant Secretary of the Army (Department of the Army Review Boards and Equal Opportunity Compliance and Complaints Review) approved the recommendation of the Department of the Army Ad Hoc Review Board that the resignation for the good of the service tendered by the applicant be accepted with discharge under other than honorable conditions.

12.  The applicant was discharged on 15 March 1985.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-120, chapter 5, with an under other than honorable conditions character of service.  He completed 1 year, 6 months, and 12 days of creditable active service.  

13.  On 27 June 1985, he petitioned the ABCMR for reinstatement in the U.S. Army, return to active duty, and removal of the under other than honorable conditions characterization from his record. 

14.  On 5 March 1986, the ABCMR denied his request.  

15.  Army Regulation 635-120 implements the statutory provisions of Title 10, U.S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100 (Personnel Separations - Officer Personnel), paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Certain discharges under the provisions of chapter 5 of Army Regulation 635-120 (now Army Regulation 600-8-24) are voluntary requests for discharge/resignation for the good of the service in lieu of trial by court-martial.  He was charged with fraternization with an enlisted member as well as conduct unbecoming.  

2.  The applicant was not coerced into resigning.  The evidence of record shows he voluntarily, willingly, and in writing, requested resignation from the Army for the good of the service in lieu of trial by a general court-martial.  He could have continued with court-martial proceedings where his innocence could have been established if he felt so.  

3.  Rather than facing the consequences of a trial by court-martial the applicant submitted his resignation for the good of the service, in lieu of trial by court-martial.  He had full knowledge of the consequences of this act.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.  

4.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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 AC85-07709, on 5 March 1986.



      _______ _   __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)                                         AR20130000808





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ABCMR Record of Proceedings (cont)                                         AR20130000808



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