PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            14 April 1999
	DOCKET NUMBER:   AR1998007854

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms.  Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas D. Redfern, III		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to honorable.

3.  The applicant states that he was honorably discharged from his first enlistment and would now like to remove the blight from his military records.  He further states that he is 70 years old and except for his undesirable discharge, was proud of his military service.  He continues by stating that from a 19-year marriage he has two daughters and four grandchildren and he asks the Board to restore his dignity so that his military service can be a proud part of his family history.

4.  The applicant’s military records were partially destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed approximately 18 million records.  However, the available records show that the applicant was initially inducted on 5 September 1946 and he enlisted in the Regular Army on 4 October 1946 and served until he was honorably discharged on 23 March 1948.

5.  He again enlisted on 4 January 1949 for a period of 3 years and was promoted to the rank of sergeant on 1 December 1951.  He continued to serve until he was discharged under other than honorable conditions on 16 July 1952 for class II homosexuality, under the provisions of Army Regulation 600-443.

6.  The available records do not contain the actual discharge proceedings and it appears that those records were classified at the time; however, the records do show that the applicant, while serving as a bar tender on the Eniwetok Atoll, was approached by an airman to allow him (the airman) to perform oral sex on him and a waiter.  Having been on an isolated tour for 6 months, he allowed the airman to do so after the bar closed.  He was subsequently interrogated several months later by the provost marshal and the commander and was informed that if he assisted them in obtaining the necessary evidence to discharge the airman, he would receive immunity.  He signed a statement explaining the circumstances and several months later was informed that he was also being discharged.  The applicant objected to the discharge, requested that the statement he signed be withdrawn, and that he be tried by a general court-martial.  His request was disapproved by the Department; however, with the assistance of a physician, he was transferred to Hawaii to undergo a psychiatric evaluation.   

7.  The examining psychiatrist prepared a four page evaluation in which he opined that the applicant was not a homosexual, that he exhibited no psychiatric tendencies.  He recommended that the applicant be retained in the service.

8.  The applicant returned to his unit and for reasons not explained in the available records, was discharged from the service.
9.  A review of the available records failed to show any other derogatory information.  All indications are that he had an exemplary record of service.

10.  On 23 October 1954 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and authorization to reenlist.  He provided documents to show that he demanded trial by court-martial and was denied, a copy of his psychiatric evaluation, and several character references.  The ADRB denied his request on 9 May 1955.

11.  Army Regulation 600-443, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals.  It classified homosexual cases in three classes.  Class I consisted of cases in which force was used against the other persons will or the act occurred with a child under 16 years of age.  Class II consisted of cases in which a homosexual act or acts were engaged that did not fall under Class I, and which it is determined not to prefer charges, or if charges are preferred, not to refer them to court-martial for trial, or in such cases where a trial is held, but does not result in a punitive discharge.  No distinction was made in the administrative handling of these cases because of the active or passive nature of the participants.  Class III consisted of cases in which the participant had not engaged in homosexual acts during active military service.  An undesirable discharge was normally considered appropriate. 

12.  Army Regulation 635-200, currently in effect, provides the policies and procedures for the separation of enlisted personnel.  Chapter 15 of that regulation provides, in pertinent part, that a discharge under other than honorable conditions will be issued only if there is a finding that during the current term of service the soldier attempted, solicited or committed a homosexual act by (1) using force, coercion or intimidation, (2) with a person under 16 years of age, (3) with a subordinate in circumstances that violate customary military-subordinate relationships, (4) openly in public view, (5) for compensation, (6) aboard a military vessel or aircraft or (7) in another location subject to military control. 

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time and that the type of discharge directed and the reasons therefor were appropriate under the circumstances. 

2.  The Board notes that the applicant admitted to participating in the homosexual act.  However, given the fact that the applicant was not diagnosed as having homosexual tendencies and that he requested the opportunity to present his case before a trial by general court-martial and was denied, the Board finds that there was a reasonable chance, under the circumstances, that he would have received a more favorable discharge.

3.  Although the applicant had an excellent record of service until he admitted to participating in the act in question, he was an NCO at the time and should have known that such conduct was unacceptable and illegal.  Therefore, his conduct can not be considered fully honorable.

4.  However, the Board finds, that given the circumstances in the case, that the applicant has endured the stigma of an undesirable discharge long enough and should be issued a general discharge to appropriately characterize his service. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a General Discharge Certificate on 16 July 1952.

2.  That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 16 July 1952, in lieu of the Undesirable Discharge Certificate of the same date now held by him.

3.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__klw ___  __tbr  ___  __aao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Karen L. Wolff______
		        CHAIRPERSON

INDEX

CASE ID	AR1998007854	
SUFFIX		
RECON		
DATE BOARDED	1999/04/14	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1952/07/16	
DISCHARGE AUTHORITY	AR600-443 	
DISCHARGE REASON	HOMOSEXUAL	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  563	A46.00/144.4600 HOMO	
2.		
3.		
4.		
5.		
6.