IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130002291 


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:

The applicant, the sister of a deceased former service member (FSM), defers her request, statement, and evidence to her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the FSM’s undesirable discharge be upgraded to an honorable discharge.

2.  Counsel states:

	a.  When the FSM received his draft notice in 1945, he felt a duty to his country to serve in a time of war.  During his induction physical, he informed the physician that he was a homosexual.  The physician responded that men might use that as an excuse to avoid serving in the military.  Because the National Personnel Records Center reported his military records were lost, apparently in the 1973 fire, it is unknown if the physician reported the FSM’s comment in his medical record.

	b.  The FSM reported to duty on 3 May 1945 to Fort Riley, KS.  While there, he again stated he was a homosexual as he wasn’t certain if the induction physical physician had communicated his sexual orientation.  He spoke to be truthful and not to request separation from the Army.  The Army continued to train him and by all accounts, he was a good Soldier.  There are no records to suggest he acted in an unfit manner at any time during the 4 months he was in the Army.  He was not punished for unfit conduct, penalized for conduct unbecoming a Soldier, and his mental health was never called into question.

	c.  In August 1945, he was notified he was being separated from the Army for his statement that he was a homosexual.  The notification must have come as a surprise to the FSM as he believed the Army knew he was a homosexual and his ongoing training led him to believe he would not be separated because of it.

	d.  He was not court-martialed.  In 1945, separation for sexual perversion, as homosexuality was referred to, was handled administratively.  The Army did not present evidence showing he was a threat to himself or others; they did not have evidence of a serious, isolated incident; nor did it have evidence of a pattern of misconduct or sexual perversion.  The Army did not show the Army would be better served if he was separated.  According to Army Regulation 615-638 (Enlisted Men - Discharge - Unfitness), in effect at the time, the Army did not have to provide evidence to support a separation.  The FSM stated he was a homosexual and, on that basis alone, he was separated from the Army and given an under other than honorable conditions discharge.

	e.  The FSM did not protest his separation.  He was a good Soldier and not one to quarrel or complain.  He was raised to follow the orders of those in authority over him.  In that respect, he was an exemplary Soldier of the highest caliber the Army would have sought in 1945.

	f.  The years after his separation were not kind to the FSM.  His 7th grade education would pose one kind of hardship and his less than honorable discharge would impose a greater hardship.  The sentiment in the United States after victory in World War II would include contempt for any Soldier with a discharge other than honorable.  He couldn’t use his discharge to find employment, get a loan, or purchase insurance.  He shined shoes or found work as a short-order cook.  He became depressed over time.

	g.  In 1977, the FSM applied for the correction of his military records to upgrade his discharge but his request could not proceed because the Army could not find any records.  In 2005, he again tried to apply for the correction of his military records and the response was that his request was too late.  Finally in June 2006, he was told action could not be taken because his records were lost.  In the letter, it stated the Army permitted re-filing of a request if a record is produced.  The applicant received some of the FSM’s records in October 2012 so this application for the correction of the FSM’s record is timely.

	h.  The regulations that were previously used to justify separation from the Army for admitting homosexuality are no longer in use and the repeal of don’t ask, don’t tell (DADT) had the support of the highest officers in the Army.  The Army has also acknowledged that homosexuals have served in the military with distinction.  

   i.  An upgrade of the FSM’s discharge to an honorable discharge is warranted because the under other than honorable conditions discharge he received was in error because:
   
* military law did not require separation (emphasis added)
* he was not accused or convicted of aggressive misconduct, a felony, or bad conduct as the Army regulation requires (emphasis added)
* it was unjust and resulted in a lifetime of inequity (emphasis added)
* it was illegal because the Army is no longer permitted to separate a Soldier for stating he is a homosexual (emphasis added)

3.  Counsel provides:

* the FSM’s WD AGO Form 53-56 (Enlisted Record and Report of Separation – Discharge from the Army of the United States)
* National Archives (NA) Form 13038 (Certification of Military Service)
* a certificate of death
* a power of attorney
* seven letters, one undated and six dated between 27 April 1977 and 19 July 2012.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, his reconstructed record contains his WD AGO Form 53-56 and additional documents which are sufficient for the Board to conduct a fair and impartial review of this case.

2.  The FSM was inducted into the Army of the United States on 3 May 1945 and he entered active duty on that date.

3.  The complete facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his WD AGO 53-56, dated 3 September 1945, shows he was discharged on that date at Fort Sheridan, IL, under the provisions of Army Regulation 615-368, by reason of unfitness (homosexuality).  He received an under other than honorable conditions characterization of service and he completed 4 months and 1 day of net active service.

4.  His reconstructed records contain a WD AGO Form 0586 (Statement of Military Service), dated 12 November 1946, wherein it shows he entered active service on 3 May 1945, had been assigned to the Cavalry Replacement Training Center, Fort Riley, KS, and received an under other than honorable conditions discharge on 3 September 1945.

5.  His reconstructed records also contain a:

   a.  VA Regional Office, Los Angeles, CA, document, dated 28 February 1976, titled Administrative Decision wherein it stated the FSM’s records showed that the veteran failed to meet moral standards by reason of having engaged in an act of homosexuality (emphasis added).  There was no evidence that he could not distinguish right from wrong or that he was not conscious of his acts.  Since his offense involved acts of homosexuality, his separation was considered to be under dishonorable conditions.

	b.  Letter to the FSM, dated 8 March 1976, from the VA Regional Office, Los Angeles, CA, wherein the FSM was informed that his discharge of 3 September 1945 was found to have been issued under dishonorable conditions and, as a consequence, he did not qualify for the benefit he applied for or any other VA benefit.  It also stated he had the right to file a request for a revision of the character of his discharge with the applicable service.

6.  On 17 January 1977, the FSM submitted a request to the ABCMR for an upgrade of his discharge.  On 22 June 1977, the Board reviewed his application and all available military records and determined that his discharge under other than honorable conditions was properly and equitably issued under the laws and regulations in effect at the time for unfitness based on homosexuality (emphasis added).  After consideration of all the evidence submitted in support of the FSM’s request, the Board unanimously determined there was no material error or injustice in his case and his request was denied.

7.  In a letter to the FSM, dated 4 August 1977, he was notified of the Board’s decision and told in the absence of new and material evidence tending to show existence of an error or injustice, further consideration by the Board was not contemplated.

8.  Army Regulation 615-368, in effect at the time, set forth the policy for administrative separation for unfitness.  It stated that:

   a.  Individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) evidence of habits or traits of character manifested by antisocial or amoral trends, criminalism, chronic alcoholism, drug addition, pathological lying, or sexual misconduct in the service which serve to render his retention in the service undesirable (b) unclean habits, (c) repeatedly committed petty offenses not warranting trial by court-martial, (d) was a habitual shirker, or (e) was recommended for discharge by a board of officers.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

   b.  Homosexual offenses are included in the criminal denunciation of Article of War 93.  However, it is a concern of the War Department whether the maintenance of discipline and the interests of the Military Establishment best served by trial by court-martial or by prompt elimination of the offender from the service under these regulations.

   c.  The policy of the War Department is that enlisted personnel who are discharged because of homosexual tendencies, but who have not committed a homosexual offense while in the service, will normally be discharged as undesirable.  If the individual has been on active duty for a considerable period of time and during such period performed his duty in an honest and faithful manner without having committed any offense of a nature related to his homosexuality may, as a matter of discretion be given a general discharge; or an honorable discharge in cases in which the man's military record is especially meritorious.
   
   d.  This policy should by no means be interpreted as implying that all confessed homosexuals should be discharged merely on the basis of a confession of homosexuality.  There should be adequate evidence of an existing psychological maladjustment resulting from homosexual tendencies which render the individual inadaptable for military service.  In those relatively rare instances where homosexual tendencies constitute symptoms of a psychiatric disorder such as psychoneurosis and psychosis, disposition should be based upon the underlying psychiatric disorder.  The disposition of any particular case is left to the discretion of the officer exercising general court-martial jurisdiction (emphasis added).  All persons discharged under the provisions of this regulation will be furnished a WD AGO Form 53-56.  

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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.

12.  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 RE code to immediately-eligible-to-reenter category

13.  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

14.  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.

15.  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 (emphasis added).  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 actions (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  Although the FSM's record is void of the complete facts and circumstances surrounding his discharge action, his WD AGO Form 53-56 confirms he was discharged under the provisions of Army Regulation 615-368 by reason of unfitness (homosexuality), with an undesirable discharge.

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  It is also presumed his discharge for homosexuality complied with the laws and regulations in effect at the time and that the characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

3.  Notwithstanding counsel's contention that the FSM was discharged simply for admitting he was a homosexual, the available evidence, provided by the applicant, contradicts this contention and shows he was discharged for having engaged in homosexual acts.  It is not known if the homosexual acts were accompanied by assault or coercion, or if the person(s) involved did not willingly cooperate in or consent to the act.

4.  The fact that DADT has been repealed and homosexuals may now serve openly in the Armed Forces does not invalidate prior discharge actions that were properly based on regulations in effect at the time of the discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis upon which to grant the 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 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)                                         AR20130002291





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ABCMR Record of Proceedings (cont)                                         AR20130002291



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