IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009967 


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 an upgrade of his uncharacterized discharge.  

2.  The applicant states he successfully completed all ranks and he was given a rank increase.  He should have received nothing less than an honorable discharge.  He was not aware that an adverse discharge appears on his records.

3.  The applicant does not provide any evidence. 

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's records show he enlisted in the Regular Army on 10 May 1985.  He was assigned to Fort Leonard Wood, MO for completion of training.  He was assigned to 5th Battalion, 3rd Basic Training Brigade.
3.  On 10 July 1985, another Soldier in a different training unit alleged in a sworn statement that the applicant told him he was "handsome" and asked him about relationships and oral sex.  He added that the applicant gave him his company address as well as his home address and stated he might have some cookies for him. 

4.  On 11 July 1985, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation 635-200 (Enlisted Personnel Separations) for homosexuality.  He recommended a general discharge. 

5.  On 16 July 1985, by sworn statement, the applicant indicated he freely admits that he is a homosexual and that he was a homosexual prior to coming into the Army.  He acknowledged he fully understood his rights and he was making this statement of his own free will. 

6.  Also on 16 July 1985, the applicant underwent a mental status evaluation.  He was found to have met retention standards.  The evaluator stated on the report that the applicant "denies homosexuality." 

7.  Also on 17 July 1985, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the bases for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He further elected to submit a statement on his own behalf.  He also acknowledged:

* he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both State and Federal law

8.  In his statement, the applicant stated he was not a homosexual.  He added that he never committed a homosexual act or had the desire to be a homosexual. He was also not trying to get a discharge from the Army. 

9.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of homosexuality.  The immediate commander stated that the applicant attempted to engage in a homosexual relationship.  He met with another private and told him to expect a letter from him in a few days.  He mailed the letter on 
5 July 1985 and the letter was an invitation to engage in a homosexual relationship with him.  The other private gave the letter to his drill sergeant after sharing its contents with his peers.  News of the letter travelled and adversely affected the discipline, morale, and good order among the trainees. 

10.  On 18 July 1985, his intermediate commander recommended approval of the discharge action with the issuance of a general discharge.  He commented that the letters contain conflicting information statements; nonetheless, the applicant's retention was not in the best interest of the Army. 

11.  On 23 July 1985, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for stealing an alarm clock from the Post Exchange. 

12.  On 24 July 1985, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of "Homosexuality" with the issuance of an entry level (uncharacterized) separation.  Accordingly, the applicant was discharged on 29 July 1985.  

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 29 July 1985 under the provisions of chapter 15 of Army Regulation 635-200 and his service was characterized as "uncharacterized."  He completed 2 months and 20 days of active service.  He was also assigned Separation Code "JRB."  

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

15.  Army Regulation 635-200, chapter 15, at the time prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces. In all other cases, the type of discharge will reflect the character of the Soldier’s service.
	a.  paragraph 3-7a, 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.

	b.  paragraph 3-7b, 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.  

	c.  paragraph 3-9, an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 10 May 1985 to 29 July 1985.  During training, he was suspected or accused of being homosexual.  Although he provided conflicting statements regarding his homosexuality, another Soldier confirmed via sworn statement of the applicant’s homosexual solicitations.  Although no criminal misconduct was committed, as required by applicable regulation at the time, his chain of command initiated separation action against him.  His discharge proceedings were conducted in accordance with law and regulations in effect at the time. 

2.  During the first 180 days of continuous active military service, a member's service is under review during.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions.  An honorable characterization may be issued only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.

3.  In all other circumstances, an entry-level (uncharacterized) separation is issued regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve on active duty long enough for his or her service to be rated.

4.  In the applicant’s case, separation action was initiated during training.  The applicant was never awarded a military occupational specialty and he only completed 2 months and 20 days of active service.  Therefore, the only characterization of service that is applicable in his case is “uncharacterized” which is properly shown on his DD Form 214.  He provides no reason to change it. 

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)                                         AR20140009967





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ABCMR Record of Proceedings (cont)                                         AR20140009967



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