PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-12852/AR1998013793

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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 he was coerced into the discharge.  In fact, he was raped.  He did not receive proper legal representation and did not receive due process.  He was immature and did not realize the long range ramifications of the discharge.

4.  The applicant’s military records show that he enlisted in the Regular Army on 26 November 1965.  He completed basic training but not advanced individual training.

5.	The applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 14 – 27 February 1966.  He was sentenced to confinement at hard labor for 30 days and to forfeit $30 pay.

6.  On 6 April 1966, the applicant was convicted by a summary court-martial of being AWOL from 28 – 31 March 1966.  He was sentenced to confinement at hard labor for 30 days and to forfeit $50 pay.

7.  On 26 April 1966, the applicant made a sworn statement to a criminal investigator giving details of his forcible rape by four other inmates while in the stockade.  On 27 April 1966, he made another sworn statement, now stating that he was a willing participant in all acts.

8.  The applicant completed a separation physical examination and was found to be qualified for separation.

9.  On 31 May 1966, a neuro-psychiatric evaluation diagnosed applicant as an immature personality and found that he was mentally responsible, able to distinguish right from wrong and adhere to the right, and was mentally capable of understanding and participating in board proceedings.

10.  On 1 June 1966, the applicant was convicted by a summary court-martial of being AWOL from 14 – 25 May 1966.  He was sentenced to hard labor without confinement for 45 days and to forfeit $58 pay.

11.  The applicant departed AWOL again from 19 June – 8 August 1966.

12.	Separation action under the provisions of Army Regulation 635-89, homosexuality, was initiated.  On 25 August 1966, the applicant was advised by counsel of the basis for the action, requested consideration of his case by a board of officers, requested personal appearance before the board, requested representing counsel, and submitted no statement in his own behalf.
13.	On 2 September 1966, the Acting Staff Judge Advocate determined that a qualified lawyer within the meaning of Article 27b(1), Uniform Code of Military Justice was not available and substituted a non-lawyer counsel “who had served on numerous courts-martial as trial and defense counsel.”

14.  On 12 September 1966, the board was convened.  At the board, the applicant stated at one point that he could have walked away but he did not want to have trouble for himself so he did not.  It was also brought out that the last time he went AWOL he went because of the homosexual problem; he wanted to talk to somebody (a friend who was a priest).  He also stated that his previous AWOLs were for no reason ”…except he was afraid of the Army.  He couldn’t get along with the procedures he was doing.”

15.  The board found that the applicant did engage in homosexual acts while in the stockade and recommended he be discharged for homosexuality under the provisions of Army Regulation 635-89 with an undesirable discharge.

16.  The installation Staff Judge Advocate found the action legally sufficient to warrant the board’s recommendations.  On 29 September 1966, the appropriate authority approved the recommendation and directed he be issued an Undesirable Discharge Certificate as a Class II homosexual.

17.  On 11 October 1966, the applicant was discharged, with a characterization of service of under other than honorable conditions, in grade E-1, under the provisions of Army Regulation 635-89.  He had completed 6 months and 10 days of creditable active service and had 126 days of lost time.

18.  Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  Homosexuals were divided into three classes.  Class I included those cases which involved an invasion of the rights of another person as where the homosexual act is accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively.

19.  Army Regulation 635-200, Chapter 15, prescribes 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. 

20.  On 12 August 1976, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with regulations applicable at the time with no indication of procedural errors which would tend to jeopardize his rights.  While his first sworn statement described his forcible rape, the very next day he changed his statement to say he was a willing participant.  His also stated at his board hearing that he could have walked away but did not. 

2.  Under current standards, when the sole basis for separation is homosexuality, the type of discharge will reflect the character of the soldier’s service unless there is a finding that the act of homosexuality was committed under any one of the seven conditions.

3.	The sole basis for the applicant’s discharge was homosexuality.  While the acts did occur in a location under military control, this Board does not believe the conduct had, or was likely to have had, an adverse impact on the discipline, good order or morale of the other inmates in the stockade. 

4.  However, the honorable characterization of service is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel.  This Board does not feel that the applicant has met this standard.  After performing creditably in basic training, he had at least 21 days of AWOL unrelated to his experiences in the stockade.  This Board feels that a general discharge, which may be issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge, is a more appropriate characterization of his service.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records 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 11 October 1966.

2.  That the Department of the Army issue to him a General Discharge Certificate from the Army of the United States, dated 11 October 1966, in lieu of the undesirable discharge of the same date now held by him.

3.  That the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.

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

BOARD VOTE:  

__KJN___  __FNE___  __JPI___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Karen J. Newsome

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12852/AR1998013793	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19661011	
DISCHARGE AUTHORITY	AR 635-89. . . . .  	
DISCHARGE REASON	A57.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.