MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            1 March 2000                  
	DOCKET NUMBER:   AR1999026001

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby 		Member	
	Mr. John Saputo		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:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge.  

APPLICANT STATES:  In effect, that he was young and he feared being sent to serve in the Republic of Vietnam.  The stressful situation caused his temperament to flare and this resulted in his becoming involved in fights.  He needs an honorable discharge so that he may be able to qualify for Department of Veterans Affairs (DVA) benefits.  In support of his request he submits a letter written in his behalf by a family member.

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

On 15 February 1966, at age 19, he enlisted in the Regular Army for 3 years.  
On 1 March 1966, he began his basic combat training (BCT) at Fort Knox, Kentucky. 

On 24 March 1966, while in BCT, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against him for striking another soldier.  His punishment was to “undergo correctional custody for 7 days” (suspended).  

On 9 April 1966, he was recycled in BCT.  He completed BCT and on 
9 June 1966, he was assigned to Fort Bliss Texas, for duty in military occupational specialty 57A (Duty Soldier).  

On 15 August 1966, the applicant underwent a mental status evaluation after he stated that he wanted out of the military at any cost.  The evaluation revealed that he felt that he was forced to join the military.  He was found guilty of breaking and entering and the judge told him that he could join the military or go to jail.  He was diagnosed to be immature, his behavior was impulsive, he used poor judgement and he functioned on a primitive level.  He was determined to be mentally responsible, and able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings.  Further, he was found to have no mental or physical defects sufficient to warrant consideration by a Physical Evaluation Board.

On 30 August 1966, he accepted NJP for being absent without leave (AWOL) from 23-29 August 1966.  His punishment included 14 days restriction and 
14 days extra duty.  On 5 October 1966, he accepted a third NJP for being disorderly on 2 October 1966.  His punishment included forfeiture of pay.

A 12 September 1966, a Criminal Investigation Division (CID) report of Investigation revealed that on 28 June 1966, five solders observed the applicant engaging in oral copulation with a male soldier.  The act of sodomy was reported to have taken place on an Army physical fitness test stand in the rear of a building at Fort Bliss.

On an unknown date, the applicant’s unit commander notified him that he was initiating action to separate him prior to the expiration of his term of service under the provisions of Army Regulation 635-89, by reason of homosexuality, Class II.  

On 30 September 1966, the applicant authenticated a statement with his signature in which he waived representation by counsel or consideration of his case by a board of officers.  He also declined the opportunity to submit a statement in his own behalf, and he acknowledged that he understood the ramifications of receiving a UD.  

On 14 October 1966, competent authority approved the recommendation and directed the issuance of a UD under the provisions of Army Regulation 635-89, for homosexuality.  

On 25 October 1966, he was separated under the provisions of Army Regulation 635-89, for homosexuality, Class II, with a UD.  He had completed 8 months and 5 days of active military service. 

The record does not indicate that the applicant ever made application to the Army Discharge Review Board for a review of his discharge.

Army Regulation 635-89, then in effect, provided, in pertinent part, the authority, criteria and procedures for the disposition of military personnel who were homosexuals or alleged homosexuals.  Section I, paragraph 3(d), defined class
II homosexual military personnel as those having engaged in one or more homosexual acts not within the purview of class I (i.e., involving an invasion of the rights of another person during active military service).  Section II, paragraph 6(a) provided for the separation of class II homosexuals.  Individuals separated as class II homosexual under this regulation normally received a characterization of service as under other than honorable conditions with a UD.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 15-4 provides, in part, when the sole basis for separation is homosexuality, the type of discharge will reflect the character of the soldier’s service.  A discharge under other than honorable conditions may 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 superior-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.  

Department of Defense (DOD) Directive 1332.28, 11 August 1982, Discharge Review Board Procedures and Standards, establishes uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code, section 1553, and applies to the Office of the Secretary of Defense and the Military Departments.  Section 4 of that Directive sets forth the objectives for discharge review.  It provides that a discharge shall be deemed proper unless it is determined that a change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge.  Furthermore, a discharge shall be deemed to be equitable unless there is substantial doubt the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

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 Board noted that the applicant met entrance qualification standards to include age.  The Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

3.  The applicant’s discharge process was administratively correct and it was in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

4.  The Board concluded that the applicant’s discharge appropriately characterizes his substandard record of service and the misconduct for which he was separated; he openly in engaged in a homosexual act in public view, in a location subject to military control.  

5.  Eligibility for DVA benefits does not fall within the purview of this agency.  Accordingly, the applicant should contact a local office of the DVA for further assistance.

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

__gdp___  __mmd__  __js_____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026001	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.