PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 August 2000                   
	DOCKET NUMBER:   AR1999027855

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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 the findings of his board of inquiry (BOI) be set aside; that he be reinstated to active duty with back pay and allowances and allowed to submit a request for retirement upon reinstatement; that he be promoted to colonel with appropriate back pay and allowances; that the Army return all personal property to him; that the BOI provide complete copies of its proceedings to him; and that the Army remove or void all suspensions of favorable personnel actions.

3.  The applicant defers to counsel.  Counsel contends that there was no credible evidence of force, coercion or intimidation and that the videotape allegedly showing such was illegally seized and illegally used as evidence by the BOI.  The applicant was not given reasonable notice regarding the aggravating factor.  The BOI should have suspended action until a decision was made on his request for retirement in lieu of elimination.  He should have been placed on medical hold.  The Army violated the Don’t Ask, Don’t Tell Policy; besides, that policy is unconstitutional.  The BOI lacked impartiality and erred when counsel’s challenge of the members was denied.  It was unjust that the applicant was discharged and the Private First Class (PFC) was not.  The applicant’s rights were violated when the fire chief seized the videotape and the U. S. Army Criminal Investigation Command (CID) obtained that videotape from the fire chief.  The BOI erred when it denied the applicant’s claim of discovery.  Defense counsel was ineffective.

4.  The applicant’s military records show that he enlisted in the Regular Army on 28 November 1967 and was commissioned out of Officer Candidate School on    22 April 1969.  He served in the U. S. Army Reserve (USAR) on active duty, to include a tour of duty in Vietnam during which he was awarded the Purple Heart and the Bronze Star Medal with V device, until he was released from active duty on 21 April 1972.  He served in the USAR not on active duty until he was voluntarily ordered to active duty in an active guard/reserve (AGR) status on       7 June 1983.  (The Army Reserve Personnel Command has confirmed that he picked up his notification of eligibility to receive retired pay (his 20-year letter) on 18 March 1992.)  In August 1993, he was assigned to Headquarters, 420th Engineer Brigade, Bryan, TX with duty III Corps, Fort Hood, TX as a lieutenant colonel (LTC).  He was selected for USAR promotion to colonel in 1995.  

5.  The incident leading to the applicant’s discharge occurred in March 1995.  According to the Government’s opening statement during the BOI, the applicant offered a ride to PFC B____, 19 years old, who accepted.  During the ride photography was discussed and B____ was invited to the applicant’s house to look at his photographs.  The applicant talked B____ into letting him take photographs and a video of him, during which sessions B____’s clothes slowly came off and he was photographed and videotaped naked and wearing leather garments and a penis ring.  B____ then asked to be taken home where he obsessed about the photographs and how they might be used.  B____ returned to the applicant’s residence and at that point found out the applicant was an LTC. He realized he would not get the photographs back, who would believe him over an LTC?  He was so overcome with fear about the photographs that when the applicant attempted to engage in homosexual acts with him, he went along with it.  B___ was so tormented that on 2 August 1996 he returned to the applicant’s home intent on getting the photographs.  He broke into the house but could not find the photographs so he set fire to the house in an attempt to destroy the pictures.  The fire marshal, during his investigation of the arson, found the applicant’s video camera with a tape in it.  On the notion that it may have been on when the arsonist set the fire, he secured the tape for a later viewing.  After viewing the tape, which depicted the applicant and what appeared to be another military member having homosexual sex, he contacted the police department, who in turn contacted the Fort Hood CID.

6.  On 29 August 1996, the applicant was notified in writing of the charges against him and that he would be required to show cause why he should remain in the Army.  The specific reasons were:  homosexual conduct, i. e., engaging in homosexual acts with three unidentified males and fondling and attempting to have anal intercourse with B___, and conduct unbecoming an officer.  He was provided with B___’s statement.  He was advised that the least favorable discharge he could receive would be a discharge under other than honorable conditions (UOTHC).  He was advised he could submit a request for resignation in lieu of elimination, apply for retirement in lieu of elimination if otherwise eligible; or submit a rebuttal or a declination statement and request appearance before a BOI.  

7.  In August 1996, the applicant requested early retirement in lieu of separation board proceedings.  Later, the Chief Army Reserve noted that at the time there was no Voluntary Early Retirement Program (VERP) for AGR officers.  Since one of the requirements for the AGR VERP is that an officer not be flagged for adverse action and because he was flagged for adverse action, he would have been ineligible for VERP had it been in effect.  

8.  On 25 September 1996, the applicant requested information which related to reports of incidents, imposition or non-imposition of punishment or administrative action for all military personnel assigned or attached to Fort Hood since 1 July 1993 for all instances of homosexuality, consensual homosexual sodomy, forcible homosexual sodomy and conduct unbecoming from these sources.  On   3 October 1996 and again on 5 November 1996, counsel for the applicant submitted a discovery request for numerous documents and other evidence relevant to the case.  

9.  On 4 November 1996, the applicant was notified to appear before a BOI to be convened on 14 November 1996 (postponed to 16 December 1996).  

10.  On 5 November 1996, counsel requested the videotape seized from the applicant’s residence be suppressed as the result of a violation of his rights under the 4th Amendment to the U. S. Constitution.

11.  On 12 December 1996, the Government responded to counsel’s discovery request by stating defense is not entitled to discovery in an administrative elimination action; discovery is only applicable to courts-martial.  It had already provided the applicant the releasable records and copies of documents reasonably necessary to prepare and present the case.  

12.  On 12 December 1996, the Government apparently notified the applicant and his defense counsel that they would argue force, coercion or intimidation as an aggravating circumstance based on additional evidence.  The additional evidence apparently was the fire chief’s description of videotape covers and homosexual publications at the applicant’s house.

13.  On 16 December 1996, a BOI (president and two members) convened.  Counsel opened by asking the board members what their general feeling about homosexuals in the Army were and all three members stated they abided by the current “don’t ask, don’t tell” policy.  They were next asked if the current policy were set aside and they could make the policy, what would it be.  All three members responded, in effect, that they would bring back the old, “no tolerance” policy.  The board was closed, reconvened 15 minutes later with the board members absent, and counsel then challenged all voting members for cause due to their responses to the second question.  The recorder noted that all board members said they would be fair and impartial and abide by the current policy, that they would look at all the evidence, and that they could see an exception to the regulation where a member could be retained.  The legal advisor was sympathetic to counsel’s concerns but thought it would be difficult to find members who would have an opinion different from those expressed by the current members.  He denied the challenge for cause.

14.  Counsel objected to the statement from B___.  His objection was denied.  A CID witness testified that, after viewing the video tape, he believed there was a nonconsensual homosexual relation between the respondent and at least one of the individuals depicted on the tape and possibly all three.  Counsel objected that this was only the witness’s opinion.  The recorder noted that the witness could testify as to what his opinion was and the board members could give whatever weight they wanted to his opinion.  The president overruled the objection.  Counsel objected to the video tape being introduced as evidence although willing to stipulate to the contents of the tape.  He contended a search warrant was needed to view the rest of the tape (after discovery that the arsonist was not on it) and since neither the local police department nor CID had a search warrant the tape should be inadmissible.  The legal advisor recommended the tape be admitted into evidence and the board determine the amount or weight to be given to the issue of force.  The president concurred with the legal advisor and the tape was admitted into evidence.  

15.  Counsel argued that the statute only stated that a soldier must be separated for homosexual conduct and separation is defined as discharge, retirement or resignation.  He asked that the applicant be retained in the Army for retirement.  His service went all the way back to Vietnam and he got to be an LTC promotable with a good record.  He contended his conduct was in the form of consensual, off-post homosexual relations, not forced or coerced relations, and that it was insufficient to warrant a discharge.  Witnesses for the applicant testified that the incident was a very small part of an otherwise excellent career and stated he should be allowed to retire.  Counsel also contended the government failed to provide all the requested evidence (his discovery request) which he felt was important to the case.  

16.  The BOI recessed on 16 December 1996.  Its findings and recommendations, as recorded on DA Form 1574, Report of Proceedings by Investigating Officer/Board of Officers, section IV show that it found the applicant did engage in homosexual conduct within the meaning of section V, Army Regulation 600-8-24; did engage in, attempt to engage in, or solicit another to engage in homosexual acts and the acts were done by using force, coercion or intimidation and the specific aggravating factor present was the use of force, coercion or intimidation; and that he did engage in conduct unbecoming an officer.  The board recommended he be eliminated from the service due to misconduct, moral or professional dereliction and that he receive a discharge UOTHC.

17.  On 14 January 1997, the applicant requested voluntary retirement effective   23 July 1997.  He included a memorandum to the BOI requesting their concurrence in his request for retirement.  He apologized for the embarrassment he caused the Army.  His private life was never part of his professional life.  His private, consensual conduct was forced into public view when his house was burned by an arsonist.  Had that not occurred, the separation between his private life and his military duty and profession would never have been breached.  

18.  On 14 January 1997, the applicant’s counsel submitted a 16-page memorandum to the Secretary of the Army requesting he disapprove the findings and recommendations of the BOI.  With this memorandum the applicant also submitted a statement.  He stated “I do not engage in nonconsensual conduct.  My sexual activity is between myself and my partner and I have no interest in any actions which might compromise that privacy…”

19.  On 28 January 1997, the applicant’s request for voluntary retirement was returned without action.  Because he was flagged and pending administrative elimination, he was not eligible for voluntary retirement.  He was informed he could request retirement in lieu of elimination.  Counsel contested this action in correspondence to the Secretary of the Army, stating the regulation does not prohibit the submission of a request for retirement when an individual is flagged, only retirement itself.  He also further enlarged upon the reasons why the Secretary should disapprove the findings of the board.

20.  On 12 May 1997, the applicant requested retirement in lieu of elimination to be effective 23 July 1997.  In a memorandum to The Adjutant General, counsel contended that the applicant’s elimination proceedings should have stopped upon his submission of his request for retirement in lieu of elimination.

21.  On 12 June 1997, the Chief, Army Reserve disapproved the applicant’s request for retirement in lieu of elimination.

22.  The Army Board of Review for Eliminations recommended that the applicant be eliminated for misconduct, moral or professional dereliction.  On 16 June 1997, the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) approved the elimination of the applicant and directed he be issued a discharge UOTHC. 

23.  On 23 June 1997, the applicant was treated for a persistent cough with yellow-green sputum lasting two weeks; on 30 June 1997 for a complaint of a chest cold; on 9 July 1997 for continued chronic cough and chest congestion. 

24.  On 14 July 1997, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade 0-5.  His DD Form 214, Certificate of Release or Discharge from Active Duty shows he had completed a total of        19 years, 1 month and 18 days of creditable active service. (A DA Form 1506, Statement of Service – For Computation of Service for Pay Purposes dated        4 October 1996 shows he would have had 19 years, 11 months and 22 days of creditable active service as of 14 July 1997.  This information was verified by the Army Reserve Personnel Command on 3 April 2000.  The additional time would be accounted for by his active duty time such as annual training during his USAR service prior to his entry on active duty in an AGR status in 1983.)

25.  On 15 July 1997, he requested he be placed on medical hold status for the purpose of being diagnosed and treated for the upper respiratory infection which existed for at least six weeks.  On 18 July 1997, the Commanding General, III Corps and Fort Hood informed the applicant a doctor examined him on his separation date and determined that medical hold status was not warranted.

26.  AR 600-8-24 prescribes the officer discharge functions for all officers on active duty for 30 days or more.  Paragraph 4-2 lists the reasons for when elimination action may or will be initiated.  Paragraph 4-2b lists the reasons when elimination action may or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security.  Paragraph 4-2b(6) lists homosexual conduct as misconduct.  Paragraph 4-22b states that an officer will be separated for homosexual conduct if the following approved finding has been made by the separation authority:  The officer has engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there are further approved findings that the officer has demonstrated that such acts are a departure from his usual behavior; such acts under all the circumstances are unlikely to recur; such acts were not accomplished by use of force, coercion or intimidation; under the particular circumstances of the case, the officer’s continued presence in the Army is consistent with the interests of the Army in maintaining proper discipline, good order and morale; and the officer does not have a propensity or intent to engage in homosexual acts.  In determining whether retention is appropriate all of the foregoing limited conditions must have been met. 

27.  AR 600-8-24, paragraph 4-22h states that the type of discharge an officer receives will reflect the characterization of service.  Characterization at separation will be based upon the quality of service.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the Uniform Code of Military Justice (UCMJ), directives and regulations issued by the Army, and the time-honored customs and traditions of military service.  The quality of service is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction.  Characterization may be based on conduct in the civilian community; the burden is on the soldier to demonstrate that such conduct did not adversely affect his or her service.  An officer may receive a discharge UOTHC when there is a finding that during the current term of service the officer attempted, solicited or committed a homosexual act by using force, coercion or intimidation, with a person under age 16, with a subordinate in circumstances that violate customary military superior-subordinate relationships, openly in public view, for compensation, or at a location subject to military control which was likely to have an adverse impact on discipline, good order, or morale.  

28.  AR 600-8-24, paragraph 4-24 states that an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate):  (1) submit a resignation in lieu of elimination; (2) request discharge in lieu of elimination; or (3) apply for retirement in lieu of elimination if otherwise eligible.  When an option is elected, elimination proceedings will be suspended pending final action on the option elected.  

29.  AR 600-8-24, paragraph 1-22 states that an officer may only be retained past his separation date for medical reasons when continued hospitalization and/or physical disability processing is required.  Paragraph 1-23 states that if an officer is being processed or referred for elimination under Chapter 4 and it is determined that he has a medical impairment that does not meet medical retention standards, he will be processed in accordance with the provisions of this regulation and through the medical evaluation board/physical evaluation board system.  

30.  AR 635-40 establishes the Army Physical Disability Evaluation System.  Paragraph 4-10 states that medical evaluation boards are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualification for retention based on the criteria in AR 40-501, chapter 3. 

31.  AR 40-501 governs medical fitness standards for appointment, retention and separation.  Pneumonia is listed in neither Chapter 2, Physical Standards for Enlistment, Appointment and Induction, nor in Chapter 3, Medical Fitness Standards for Retention and Separation Including Retirement as a defect which may render a soldier unfit for appointment or retention in the military service.

32.  AR 15-6 establishes procedures for investigations or boards of officers not specifically authorized by other regulations.  Paragraph 5-5 states that the board recorder will, at a reasonable time in advance of the first session of the board concerning a respondent, provide that respondent a copy of all unclassified documents in the case file and a letter of notification.  In the absence of special circumstances or a different period established by the directive authorizing the board, a “reasonable time” is 5 working days.  The letter of notification will include the matter to be investigated, including specific allegations, in sufficient detail to enable the respondent to prepare.

33.  AR 600-20 prescribes the policies and responsibilities of command.  It provides guidance covering military discipline and conduct, and precedence of rank.  Chapter 4 of the version in effect at the time stated that military discipline is founded upon self-discipline, respect for properly constituted authority, and the embracing of the professional Army ethic with its supporting individual values.  Paragraph 4-4 stated that ensuring the proper conduct of soldiers was a function of command.  Commanders rely upon all leaders in the Army, whether they are on or off duty, to take action against military personnel in any case where the soldier’s conduct violates good order and military discipline.  

34.  Title 10, U. S. Code, section 14902(b) provides that the Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record of any reserve officer to determine whether that officer should be required, because of misconduct, because of moral or professional dereliction, or because the officer’s retention is not clearly consistent with the interests of national security, to show cause for retention in an active status.  Section 14905 provides that at any time during proceedings with respect to the removal of an officer from an active status, the Secretary of the military department concerned may grant a request by the officer for voluntary retirement, if the officer is qualified for retirement; or for transfer to the Retired Reserve if the officer has completed the required years of service for eligibility for retired pay.  An officer removed from an active status shall, if eligible for voluntary retirement on the date of such removal, be retired in the grade and with the retired pay for which he would normally be eligible.  If he is eligible for transfer to the Retired Reserve and has completed the required years of service for retired pay, he shall be transferred to the Retired Reserve.

35.  In the processing of this case, an advisory opinion was obtained from the legal advisor to the Army Review Boards Agency (SEE ATTACHED). In part, the advisory opinion discusses the fact that the applicant should be transferred to the Retired Reserve.  He has not been transferred to the Retired Reserve.  The applicant’s counsel rebutted the advisory opinion (SEE ATTACHED).  He states that there was no evidence to show the applicant used force, coercion or intimidation to obtain an individual’s consent to engage in homosexual acts.  He states the videotape was illegally seized and obtained by the Army.  The applicant was not afforded due process when no reasonable notice was given regarding the aggravating factor.  The applicant was retirement eligible as of      23 July 1997, just 8 days after the date he was actually discharged.  Had the Army properly given him reasonable notice to prepare a defense against the aggravating factors, enough time would have passed to make his actual discharge date 23 July 1997 or later, making him retirement eligible as of his discharge date and by law he would have been afforded the opportunity to retire. The medical commander did not have the option to deny the applicant’s request for medical hold.  There was a substantial possibility that the board members were not able to set aside their firmly-held convictions (regarding homosexuality) and render a fair decision.  The Army deliberately ignored B___’s homosexual conduct and did not pursue him after discovering that conduct as they pursued the applicant.  The applicant was entitled to discovery.  Defense counsel’s performance was uneven; he did not provide competent representation when he failed to challenge the government’s change in the charge to add force, coercion or intimidation.  The BOI did not consider the retention factors and such consideration must be made in all cases where a finding of homosexuality has been made.

CONCLUSIONS:

1.  The Board has carefully reviewed the videotape and concludes that there was no evidence of force, coercion or intimidation being used in the performance of any of the videotaped acts or that any of it was nonconsensual or that any reasonable person could have concluded otherwise.  The Board also concludes that no other evidence introduced by the Government, to include B___’s statement, proves or otherwise shows any of the aggravating factors required to automatically consider giving the applicant a discharge UOTHC when the reason for discharge is homosexuality.

2.  However, neither does the Board conclude that the applicant’s quality of service was totally honorable.  It was not the act of the arsonist that led to the applicant’s discharge; it was his own misconduct combined with extremely poor judgment in videotaping a virtual stranger in compromising poses.  The consequences of his misconduct and poor judgment could have been much worse for him.  As it was, the consequences of his misconduct brought the Army into discredit and contempt in the eyes of the civilian community.  While B___ may not have been his subordinate within the meaning of AR 600-20, the applicant was a senior commissioned officer and a leader and PFC B ___ was a junior soldier.  It was not within the standards of acceptable personal conduct for him to seduce a junior soldier into committing an act which was known by him to be illegal under the UCMJ.  It was his responsibility to ensure such junior soldiers did not violate military discipline.  The Board notes, in weighing equity consideration, that even if the relationship had been heterosexual, the acts and military status of the participants would have constituted sufficient misconduct to justify elimination.

3.  The Board concludes that in view of the above, it would not be appropriate to set aside the findings of the applicant’s BOI.  It would, however, be appropriate to modify the findings of the BOI to delete reference to engaging in, attempting to engage in, or soliciting another to engage in homosexual acts and the acts were done be using force, coercion or intimidation.  The Board also concludes, however, that a flagging action (suspension of favorable personnel actions) was properly initiated on the applicant because misconduct (homosexual acts) did occur.

4.  The Board concludes that the Army did not violate the Don’t Ask, Don’t Tell Policy for the reason cited above – it was the applicant’s own misconduct and poor judgment that led to the discovery that he was a homosexual.  Several federal courts have reviewed the legality of the Army’s “Don’t Ask Don’t Tell” policy and have found the policy to be legal and in compliance with constitutional guidelines.

5.  The Board concludes that it was not unjust to discharge the applicant for homosexuality and not PFC B___.  As a senior commissioned officer, the applicant is necessarily held to a higher standard.  To hold the lower ranking soldier to the same standards, especially since it appears that at least the first of his acknowledged homosexual acts was the result of the seduction on the part of the applicant, is not in the interest of justice.

6.  The Board concludes that the members of the BOI did not lack impartiality simply because their personal beliefs about homosexuality differed from that of the applicant.  They were senior commissioned officers who were trained to put their own views and opinions behind them for the good of the Army.  The regulation provided for a possibility to retain the applicant.  The Board concludes that the members of the BOI understood this and considered it and that there was no error when counsel’s challenge of the members was denied.  The Board concludes that the BOI considered the retention factors, all of which had to have been met in order to determine that the applicant could be retained.  Since during board testimony counsel was willing to stipulate to the contents of the tape, and since the tape showed the applicant engaging in homosexual conduct with another man, the Board concludes that the BOI rightly concluded that the applicant had a propensity to engage in homosexual acts and so did not meet all the retention factors.

7.  The Board concludes that the evidence amply showed that the applicant was guilty of conduct unbecoming an officer for which he received the appropriate notification on 4 November 1996, his board of inquiry then held on 16 December 1996.  Since this Board has concluded there were no aggravating factors, the Board also concludes that the applicant received proper notification of the administrative proceedings against him.  Thus, the issue as to whether the applicant needed additional time to prepare his defense is moot.

8.  The Board concludes that the intent behind suspending board proceedings until a request for retirement is acted upon is to save the Army time and money (there being no sense to continuing board proceedings if the government approves the request for retirement).  The Board notes that this suspension factor is not a statutory requirement.  In August 1996, the applicant was notified that he could submit a request for retirement in lieu of elimination if eligible.  In August 1996, he submitted a request for voluntary early retirement; not a request for retirement in lieu of elimination.  In January 1997, he submitted a request for voluntary retirement; not a request for retirement in lieu of elimination.  Both requests were properly denied.  Not until May 1997, one month before his discharge was approved by the Secretary of the Army, did he submit a request for retirement in lieu of elimination.  Since his request for retirement was disapproved anyway, this is a moot point.  Further, the Board concludes that if not granting the delay was an error, it was nevertheless a harmless error.  Even if the applicant had been granted a 30-day delay for OCAR to act on his request, the DASA(M&RA) still had 39 days to act on the recommendation of the Army Board of Review for Elimination and order the applicant’s elimination.  (On        12 May 1997, the applicant submitted his request for retirement in lieu of elimination.  On 12 June 1997, OCAR denied the applicant’s request.  On         16 June 1997, the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) approved the applicant’s elimination and directed he be issued a discharge under other than honorable conditions.  However, the applicant was not discharged until 14 July 1997 and he would not have accrued 20 years of creditable service towards regular retirement until 22 July 1997.)
9.  In addition, the Board also notes that the retirement in lieu of elimination option is available to officers who are otherwise eligible for retirement.  The applicant was not eligible for retirement at any of the three times he applied for retirement as he did not yet have 20 years of active federal service.  

10.  The Board concludes that, since the board of inquiry was an administrative proceeding and not a court-martial, the rules of evidence did not apply and the videotape was properly considered as evidence.  For this reason, the Board concludes that the applicant’s rights were not violated when the fire chief seized the videotape and the CID obtained that videotape from the fire chief.  For this reason also, the Board concludes that the BOI did not err when it denied the applicant’s claim of discovery.

11.  The Board concludes that the applicant’s military defense counsel was very diligent in performing his duties.  He submitted at least two requests for discovery, requested suppression of evidence, challenged board members, made numerous objections and contentions during the board hearing and submitted a lengthy and detailed appeal after the hearing.  

12.  The Board concludes that the applicant did not meet the criteria to be placed on medical hold.  The regulation states he could only be retained past his separation date for medical reasons when continued hospitalization and/or physical disability processing is required.  He was neither hospitalized nor eligible for physical disability processing.

13.  The Board is not a records holding agency.  The applicant should submit a Freedom of Information Act request for the records he desires (i. e., his personal property and complete copies of the BOI proceedings) to the command that directed the Board of Inquiry.

14.  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:

     a.  amending the DA Form 1574 as pertains to the applicant, section IV, to delete the phrase “Lieutenant Colonel L_____ did engage in, attempt to engage in, or solicit another to engage in homosexual acts and the acts were done by using force, coercion or intimidation and the specific aggravating factor present was the use of force, coercion or intimidation;”

     b.  voiding the UOTHC discharge now held by the applicant;
     c.  issuing to the applicant a new DD Form 214 to show his character of service as general under honorable conditions and his type of separation as release from active duty with the appropriate correction in item 9; 

     d.  revoking Orders D-07-800135, U. S. Army Reserve Personnel Center dated 1 July 1997 discharging the applicant from the USAR/Active Guard Reserve; and

     e.  issuing new orders assigning the applicant to the Retired Reserve.  In accordance with Title 10, U. S. Code, section 14905(b)(2), the applicant would be eligible for retired pay for non-regular service at age 60.

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

BOARD VOTE:  

__jns___  __esc___  __cmf___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027855	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19970714	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON	A65.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.