BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150004060 


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 the correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* an honorable discharge (HD)
* completion of advanced individual training (AIT) with award of the military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic)
* service in Vietnam
* his rank as a first lieutenant (1LT) pay grade O-2
* "Medal of Valor (for distinguished service)," two Silver Stars, three "Bronze Stars" and a Purple Heart 

2.  The applicant states:

* he was discharged for admitting to being a homosexual and as homosexuals are now accepted in the military, his discharge should be upgraded
* his DD Form 214 lists only his basic training and ignores his completion of AIT and his service at Fort Dix
* his DD Form 214 fails to state his correct rank (first lieutenant (1LT)) and the distinguished medals he earned
* his medals were not put on his DD Form 214 because he refused to denounce his homosexuality
* he is willing to appear before the Board 

* an officer from the Central Intelligence Agency (CIA) and from the Criminal Investigation Command (CID) should be present at his personal appearance hearing due to the nature of his service in Vietnam and at Fort Dix

3.  The applicant provides copies of his DD Form 214, DA Form 20 (Enlisted Qualification Record), and his enlistment document.

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.  On 6 March 1968, the applicant, with parental consent, enlisted in the Regular Army for 3 years.  He is shown to have completed 10 years of education.  He completed basic training and started AIT for the MOS 63B on 17 June 1968.  

3.  He was reported absent without leave (AWOL) on 1 July 1968 while in an AIT status and was dropped from the rolls as a deserter on 31 July 1968.

4.  The applicant returned to military control on 13 August 1968 and was placed in military confinement pending court-martial.

5.  On 29 August 1968, based on a Federal Bureau of Investigation (FBI) criminal report, the CID initiated an investigation for fraudulent entry.  The FBI reported that the applicant had preinduction history/charges of involvement in auto theft and trespassing.  This investigation was subsequently reported as being held in abeyance pending the applicant's court-martial for AWOL and a subsequent homosexuality investigation.  It appears this investigation was never completed due to the applicant's homosexuality discharge. 

6.  On 3 September 1968, a special court-martial, in accordance with his plea, found the applicant guilty of being AWOL from 1 July 1968 through 13 August 1968.  His punishment included confinement for 4 months.  
7.  On 6 September 1968, the court-martial convening authority approved the findings and sentence of the court-martial and directed the sentence be executed.

8.  On 12 September 1968, a CID investigation was initiated for homosexuality.  

9.  On 3 October 1968, the Special Processing Detachment initiated separation action against the applicant for homosexuality.  His conduct, efficiency, and duty performance were reported as unsatisfactory.

10.  The examining physician for an 8 October 1968 Report of Medical Examination reported that the applicant as suffering from a moderate, chronic emotionally unstable personality with antisocial features.  The condition was manifested by his alleged homosexuality, alleged drug use, violations of military and civilian laws, poorly controlled anger, impulsivity, and poor judgement.  It was reported that he had a long history of these traits.  The condition was determined to have existed prior to service.  He was found qualified for separation under Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability), paragraph 6a – unfitness.

11.  On 16 October 1968, the applicant acknowledged the separation action and waived all of his administrative rights.

12.  On 22 November 1968, the applicant submitted a statement stating he had been an active party to homosexual acts prior to joining the service and while AWOL.

13.  An 8 January 1969 DA Form 2800 (CID Report of Investigation) shows the applicant was still under investigation for sodomy.  The investigation had been initiated on 19 September 1968 and was being held in abeyance pending interviews with two other individuals involved.

14.  On 3 March 1969, a senior personnel officer at Fort Dix, NJ recommended the applicant’s discharge action be approved and issuance of an undesirable discharge (UD).  He noted that the applicant was investigated for homosexual acts and had admitted to having had numerous homosexual experiences both prior to and since entering the service.  The investigator's conclusions established that the applicant had committed homosexual acts while in the service.  The evidence was legally sufficient.  

15.  On 6 March 1969, the discharge authority directed the applicant be discharged based on his admission of homosexuality with a UD.

16.  His DA Form 20 (Enlisted Qualification Record) shows:

* item 31 (Foreign Service), no foreign service 
* item 32 (Civilian Education), completion of 10 years of high school
* item 33 (Appointments and Reductions), private/pay grade E-1 effective on 6 March 1968

17.  His DD Form 214 shows his:

* date of discharge as 12 March 1969 
* rank and pay grade as private/E-1
* reason for separation as Army Regulation 635-89 (Personnel Separations – Homosexuality)
* characterization of service as under conditions other than honorable 
* service in the MOS 57A (Duty Soldier)
* only award of the National Defense Service Medal
* period of creditable service as 3 months and 29 days 
* no foreign service
* three periods of lost time; 251 day – 44 days in AWOL and 207 due to military incarceration

18.  Army Regulation 635-89, in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  It provided that an honorable or general discharge could be issued under exceptional circumstances but that in most cases an undesirable discharge would be issued.  Homosexual acts were punishable by court-martial and in each case the major commander was responsible for determining whether the best interests of the service would be served by punitive or administrative measures.  Commanders had discretion on the discharge to be issued to Class II homosexuals; however, all individuals who were deemed Class I homosexuals (homosexual acts involving force, fraud, intimidation, or a minor under the age of 16) were not authorized to receive a general or honorable discharge.

19.  Army Regulation 635-212, paragraph 6a, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness for:

* frequent incidents of a discreditable mature with civil or military authorities
* sexual perversion, including but not limited to – 

* Lewd and lascivious acts
* indecent exposure
* other indecent acts or offenses
* drug addiction or the unauthorized use or possession of habit-forming 
			drugs or marijuana
* an established pattern for shirking

20.  Army Regulation 635-212, paragraph 6b, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unsuitability due to –

* inaptitude
* character and behavior disorders
* disorders of intelligence
* apathy
* alcoholism 
* enuresis 
* Class III homosexuality

21.  Army Regulation 635-212 provided that an undesirable discharge was normally considered appropriate for separations under paragraph 6a – unfitness, whereas separations under paragraph 6b warranted an honorable or general discharge based upon the individual's entire record. 

22.  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, United States 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 Don't Ask, Don't Tell (DADT) or prior policies.

23.  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" (Separation Program Designator (SPD) Code JFF)), characterization of the discharge to honorable, and the RE code to an immediately-eligible-to-reenter category.

24.  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 and that there were no aggravating factors in the record, such as misconduct.



25.  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.

26.  The memorandum also recognized that although BCM/NR have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is 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 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.

27.  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.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  A discharge under other than honorable conditions (UOTHC) discharge (formerly called a UD) is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial; when the reason for separation is based upon a pattern of behavior or one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army.

	d.  Pre-service activities will not be considered in determining the characterization of service except in proceedings for fraudulent entry, when misrepresentations, including omissions of facts which, if known, would have prevented, postponed, or otherwise affected the Soldier’s eligibility for enlistment.

	e.  Fraudulent entry is the procurement of an enlistment through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver.  A Soldier who concealed an arrest record for any juvenile or adult offense may be separated.  Separation is based on the false statements made in enlistment documents regarding the existence of an arrest record.

	f.  The 6 September 2011 version of the regulation enacted the Don’t Ask, Don’t Tell Repeal Act of 2010 by deleting all references to separation for homosexual conduct and concealment of pre-service and prior-service homosexual conduct.  

28.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR).  The general qualifications for accepting an appointment include age restrictions, citizenship, mental aptitude scores, being a high school graduate or school comparable level, and meeting any additional requirements for specific officer branches (higher education). 

29.  Army Regulation 600-8-22 (Military Awards) provides that for all personal decorations to include the Medal of Honor, Silver Star and Bronze Star Medal, require formal written recommendations by persons who witnessed the acts of bravery or meritorious service, approval through the chain of command, and announcement in orders are required.  These three awards are combat decorations for distinguishing oneself conspicuously by gallantry and intrepidity at the risk of one’s life above and beyond the call of duty while engaged in an action against an enemy of the United States.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  The regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.  

30.  Army Regulation 600-8-22 states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

31.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant has not provided and the record does not contain any evidence that he completed AIT or was awarded MOS 63B.  The record shows he departed AWOL while in a training status and was discharged prior to completion of MOS training.  

3.  Concerning correcting his record to show he was promoted to 1LT, there is no evidence he received a commission or served as a commissioned officer.  Having completed only 10 years of schooling, the applicant did not meet the minimum educational requirement of being a high school graduate or its equivalent to receive a commission.  Without an initial appointment as a commissioned officer in the rank and grade of second lieutenant/O-1, there is no evidence to support his alleged promotion to 1LT/pay grade O-2.

4.  Concerning correcting his record to show a tour of duty in Vietnam, the applicant has not provided and the record does not contain any evidence that he completed AIT much less that he was assigned to duty in Vietnam.  Without verifiable evidence that he served in Vietnam, correction of his record to show he was eligible for any Vietnam service awards is not justified.

5.  Concerning correcting his record to show potential personal decorations for alleged combat bravery, the applicant has not provided and the record does not contain any evidence that he had any foreign service much less service in combat.  There is no justification to show he was recommended for or awarded any personal decoration for bravery.  

6.  Concerning correcting his record to show award of the Purple Heart, as noted above, he has not shown that he served in Vietnam.  Even if he had served in Vietnam, he has not provided any evidence of sustaining a wound while in action against an enemy or as a result of hostile action service.  Without verification of a wound sustained while in action against an enemy or as a result of hostile action, award of the Purple Heart cannot be justified. 

7.  The applicant did receive the National Defense Service Medal, which is the appropriate award for his brief 3 months and 29 days of creditable service and is recorded on his DD Form 214. 

8.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  The characterization of his discharge was commensurate with the reason for his discharge and his overall record of military service.  

9.  Nevertheless, the law has since been changed, and current standards may be applied to previously separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterization of service changed unless there are mitigating circumstances.

10.  With the removal of all homosexual-specific regulations, a change of reason for separation is directed if there are no aggravating factors.  

11.  The applicant reported that his homosexual activity was consensual and was reported as occurring either prior to service or while he was AWOL.  Therefore, under the 2011 revised policy he meets the criteria to change his reason for separation to "Secretarial Authority."

12.  With removal of the homosexual related aspects of the applicant's service and discharge, his characterization of his service must be based on other factors reported to include: 

	a.  His failure to complete AIT: the applicant would have been retained on active duty and returned to AIT following his court-martial had he not also been incarcerated due to the homosexual investigation and subsequent discharge.  Therefore, his failure to complete AIT should not be held against him in determining his characterization of service.  

	b.  His unsatisfactory conduct, efficiency, and duty performance rating: based on the limited information related to his unsatisfactory conduct, efficiency, and duty performance ratings, it cannot be shown that these factors were related to his admission of homosexual acts, his incarceration, or were for other causes.

	c.  His court-martial conviction for his period of AWOL: the applicant was AWOL for 44 days.  There is no indication that this misconduct was related to his sexual orientation and occurred prior to the homosexuality investigation.  Therefore, it is appropriate to consider it in the final determine of the characterization of his service.

	d.  The incomplete investigation for fraudulent enlistment: the applicant was under investigation for fraudulent enlistment prior to his period of AWOL and the homosexual investigation.  Based on the FBI report, it appears that the fraudulent enlistment investigation was based on a failure to report criminal activities prior to his enlistment.  A discharge for concealment of prior felony charges normally warrants a UD.

	e.  The medical opinion voiced on the separation medical report: at the time of his separation, the applicant was diagnosed as having an emotionally unstable personality.  The attending physician did not recommend him for separation due to unfitness but rather for unsuitability.  Had he been considered for separation for unsuitability due to what appears to be a diagnosis of a personality disorder, his characterization of service would be at least a GD.  However, he was recommended for separation for unfitness, which normally warranted a UD. 

12.  There is no evidence if the attending physician at the time of the applicant's separation examination was a psychologist or psychiatrist and the record does not contain a separate mental status evaluation.  Therefore, whether or not the reported personality disorder was a proper diagnosis and if it was considered as a mitigating factor in the applicant's misconduct cannot be demonstrated.

13.  Removing the homosexuality issue, it appears that the applicant should have been considered for discharge based on his preexisting personality disorder.  Based on the regulations in effect this reason for separation warrants at least a GD.  

14.  Because the fraudulent entry investigation was not completed, there is insufficient evidence that the applicant would have been found to have warranted a UD based on not revealing his prior-to-service police record.   

15.  The applicant was AWOL for 44 days prior to the homosexual investigation. Based on this period of absence, the applicant is not shown to have met the standards of acceptable conduct and performance of duty for an HD.  

16.  Therefore, by balancing all of the above factors and actions that would or should have been taken if the homosexual issue were not a factor, the applicant's characterization of service would best described as general, under honorable conditions. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the applicant's reason for separation to "Secretarial Authority" and his character of service as "General, under honorable conditions."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* showing he completed AIT 
* showing he was awarded the MOS 63B (Light Wheeled Vehicle Mechanic)
* showing he served in Vietnam 
* showing he was commissioned with promotion to the rank of first lieutenant 
* showing he was awarded the "Medal of Valor," two Silver Stars, three "Bronze Stars," or a Purple Heart 
* granting him a personal appearance



      _______ _   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)                                         AR20150004060



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ABCMR Record of Proceedings (cont)                                         AR20150004060



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