PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           04 February 1999                   
	DOCKET NUMBER:   AC98-11252
                                              AR1999015082

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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 her undesirable discharge be upgraded to honorable.

3.  The applicant states that she has suffered for 43 years and wants her discharge upgraded before she dies so that her family and friends do not discover she was separated from the Army for homosexuality.

4.  The applicant's military records show that she enlisted in the Women’s Army Auxiliary Corps (WAAC) on 5 August 1943 and served as a driver in the European Theater of Operations until September 1945.  She attained the rank of sergeant and was honorably discharged on 3 November 1946.  During this period of service she was awarded the Army Commendation Ribbon, the Good Conduct Medal, the European-African-Middle Eastern Service Medal with bronze service star, the American Service Medal, and the World War II Victory Medal.

5.  On 18 July 1947 the applicant enlisted in the WAAC and served as a supply clerk. She was honorably discharged on 21 July 1948 and reenlisted on 22 July 1948 for 4 years.  She was again honorably discharged on 13 March 1951 for the purpose of reenlistment on 14 March 1951 for an indefinite period.

6.  The applicant’s discharge packet is missing from her military records, however, her separation document (DD Form 214) shows she was administratively discharged on 15 September 1954 under the provisions of Army Regulation  615-365 and Army Regulation 600-443 for homosexuality.  She completed 10 years and 6 months of creditable service and was furnished an Undesirable Discharge Certificate.

7.  A Separation of Homosexual Personnel (AGPZ Form 219), undated, summarized the applicant’s separation from the service.  It showed that her commanding officer recommended her discharge, the psychiatrist found no medical reasons preventing her administrative separation, and the Army Personnel Board recommended her separation in accordance with Army Regulation 600-443, paragraph 7b(1), and that she be furnished an Undesirable Discharge Certificate.

8.  On 9 February 1955 the Army Discharge Review Board denied her appeal for upgrade of her discharge.

9.  Army Regulation 600-443, then in effect, prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army.  That regulation provided, in pertinent part, that true, confirmed, or habitual homosexual personnel, irrespective of sex, would not be permitted to serve in the Army in any capacity and prompt separation of known  homosexuals from the Army was mandatory.  That regulation further provided that homosexual personnel coming within the purview of Department of the Army policy fall into several categories which may or may not overlap and will be more or less complicated by the facts and circumstances peculiar to the individual cases.  Cases, however, generally were classified as Class I or Class II.  Class I was defined as those cases accompanied by assault or coercion, as characterized by any act in or to which the other person involved did not willingly cooperate or consent or where consent was obtained through force, fraud, or actual intimidation, thereby constituting an invasion of the rights of another; or any homosexual action with a child under the age of consent, whether the child cooperates or not.  Class II was defined as those cases wherein true or confirmed homosexual personnel have engaged in one or more homosexual acts or where evidence supports proposal or attempt to perform an act of homosexuality and which does not fall into the category of class I.

10.  Paragraph 7 of that regulation provided that when the investigation clearly indicates that the accused fell within the provisions which classified an individual as class II, charges and specification (s) for trial by general court-martial (GCM) would be prepared and the accused would be confronted with them.  The accused was then offered the alternative of resigning in lieu of GCM.  Paragraph 7b(1) specified the contents of the signed statement.  It provided that the accused accepted an undesirable discharge for the good of the service to escape trial by GCM.  It further included the understanding that separation from the Army would be under conditions other than honorable; that the member may be deprived of many rights as a veteran under both Federal and State legislation; and that the member may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing.

11.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation provides, in pertinent part, that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, of this regulation, and if there is a finding that during the current term of service the soldier attempted, solicited, or committed a homosexual act -(1) by using force, coercion, or intimidation.  (2) With a person under 16 years of age.  (3) With a subordinate in circumstances that violate customary military superior-subordinate relationships.  (4) Openly in public view.  (5) For compensation.  
(6) Aboard a military vessel or aircraft.  (7) 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.

12.  Chapter 3, section III of that regulation provides, in pertinent part, that characterization at separation will be based upon the quality of the soldier’s service.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time.  It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service when the reason for separation is based upon one or more acts or omissions, or on a pattern of behavior, that constitutes a significant departure from the conduct expected of soldiers of the Army.

CONCLUSIONS:

1.  Lacking evidence to the contrary, administrative regularity is presumed in the applicant’s administrative separation under the provisions of Army Regulation 600-443, for homosexuality.  Furthermore, it appears that the applicant voluntarily requested separation under the provisions of paragraph 7b(1) of that regulation, for the good of the service, in lieu of trial by GCM.

2.  However, as a matter of equity, the Board is of the opinion that the applicant’s overall quality of service for more than 10 years, and the passing of time, more than 44 years, warrant upgrading her discharge to honorable.

3.  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 an Honorable Discharge Certificate on 15 September 1954.

2.  That the Department of the Army issue to the individual concerned an Honorable Discharge Certificate from the Army of  the United States, dated 15 September 1954, in lieu of the Undesirable Desirable Discharge Certificate of the same date now held by her; and that she be issued a new DD Form 214.

BOARD VOTE:  

____X____  ____X____  ____X____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON