PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            30 September 1998                                     
	DOCKET NUMBER:   AC98-10720

	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. Irene N. Wheelwright		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. James M. Alward		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 upgrade of her undesirable discharge to honorable.

3.  The applicant states she found the discharge extremely inappropriate then as she does now.  She believes that her life, both prior to the incident and after, was commendable.  She has a beautiful daughter and two grandsons to show for her life.

4.  The applicant’s military records show that she initially enlisted in the Regular Army on 27 May 1954 and was honorably separated on 13 July 1956.  She had earned the Army Good Conduct Medal.  She re-enlisted on 25 April 1957 in the grade of E-2.  She had no record of disciplinary actions prior to the discharge action.

5.  On 11 September 1957, the applicant made a sworn statement that during her first enlistment she had a homosexual relation with one person at Fort Gordon, GA.  After she separated she developed a homosexual relation with another person, who followed her back to Fort Gordon after she re-enlisted and remained with her for about one month.  She had no other affairs.  She considered herself a confirmed homosexual.

6.  On 1 November 1957, a psychiatric evaluation found the applicant was not insane, possessed sufficient mental capacity to know the difference between right and wrong and be able to adhere to the right and refrain from the wrong, and was considered to be mentally responsible for her acts.  She was determined to be a Class II homosexual.

7.  On 5 November 1957, court martial charges were preferred against the applicant charging her with sodomy.

8.  On 9 November 1957, the applicant’s commander initiated discharge proceedings on her under the provisions of Army Regulation 635-89.

9.  On 29 November 1957, the applicant stated that she accepted an undesirable discharge for the good of the service and to escape trial by general court-martial.

10.  On 11 December 1957, the appropriate authority approved the request and directed she be issued an Undesirable Discharge Certificate.

11.  On 19 December 1957, the applicant was discharged, with a characterization of service of under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-89.  She had completed 2 years, 9 months and 12 days of creditable active service and had no lost time.

12.  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.

13.  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. 

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 her rights.  She admitted to having a homosexual relationship, an act that by itself provided for a characterization of separation of under other than honorable conditions.

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 applicant was a private and admitted to having a relationship with a person known to her prior to her re-enlistment who was not a service member.  There is no evidence in the applicant’s sworn statement or in any other discharge document to show she met any one of the conditions.  Her service is otherwise free of any disciplinary actions.

4.  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 an Honorable Discharge Certificate on 19 December 1957.

2.  That the Department of the Army issue to her an Honorable Discharge Certificate from the Army of the United States, dated 19 December 1957, in lieu of the undesirable discharge of the same date now held by her.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON