MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 January 1999
	DOCKET NUMBER:   AC98-12811
                                              AR1998012237

	I certify that hereinafter is recorded the record of consideration 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 J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  That his discharge should be changed to honorable because the facts leading to the discharge were untrue and under current standards/regulations an honorable discharge is warranted.  He further states that the discharge is too harsh.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 31 October 1974.  He successfully completed his training as a food service specialist and was transferred to Hunter Army Airfield, Georgia.  He was advanced to the pay grade of E-4 on 12 March 1976 and remained on active duty through a subsequent reenlistment.

On 28 July 1977 nonjudicial punishment was imposed against the applicant for being AWOL on 21 July 1977.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days) and extra duty for 14 days.

On 13 April 1978 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and 14 days of extra duty.

On 17 September 1979 he was transferred to Korea.

On or about 24 October 1979 an investigation was conducted by the Criminal Investigation Command (CID) involving a homosexual act and act of sodomy that occurred in the billets and in which the applicant was suspected of being involved.

The applicant and the other involved parties were advised of their rights and sworn statements were rendered by the applicant and other involved parties.  In the applicant’s sworn statement he admitted that he was involved in an act of oral sex and sodomy with another soldier in the billets on 15 October 1979.  Statements submitted by other parties present in the billets confirmed the applicant’s conduct.

The applicant’s commander initiated action to separate him from the service on 9 November 1979 under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on a homosexual act.

On 21 November 1979 he underwent a mental status evaluation and was cleared for any administrative action the commander deemed appropriate.  The examining psychiatrist indicated that his impression of the applicant was that he suffered from sexual deviation as evidenced by a homosexual act and indicated that the applicant stated that he had only one homosexual experience.

After consulting with counsel, the applicant elected to waive consideration of and appearance before a board of officers.  He also elected to submit a statement in his own behalf in which he asserted that he was a good soldier and that he could continue to be a good soldier if he were afforded the opportunity.  He also submitted several letters of support from fellow soldiers in support of his character and duty performance.

The appropriate authority approved the recommendation on 15 December 1979 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 9 January 1980 under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on homosexual acts.  He had served 5 years, 2 months, and 9 days of total active service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  While an honorable or general discharge may be issued, a discharge under other than honorable conditions is normally considered appropriate.  The regulation currently in effect also provides for the issuance of a discharge under other than honorable conditions if it can be established that the act was committed in a location under military control. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

4.  The applicant’s contentions have been noted by the Board and appear to be without merit.  The evidence of record clearly shows that the applicant admitted in a sworn statement that he had committed the act for which he was accused.  The applicant further informed the examining psychiatrist that he had only had one such experience.

5.  The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___kn___  ___jif  ___  __fe ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12811/AR1998012237	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1980/01/09	
DISCHARGE AUTHORITY	AR 635-200, CH14  	
DISCHARGE REASON	MISCONDUCT/HOMOSEXUAL ACTS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  144.4600		
2.		
3.		
4.		
5.		
6.