MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 June 2000                  
	DOCKET NUMBER:   AR1999029119

	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.

	Mr. Carl W. S. Chun			  Director 
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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, upgrade of his undesirable discharge (UD) to a general discharge, under honorable conditions.

APPLICANT STATES:  In essence, that he is getting up in years, he needs medical care and believes that he associated with the wrong personnel at the time of the incidents which led to his discharge.  His family is unaware of the type and reasons for his discharge and would like his records to be changed.  

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

He enlisted in the Regular Army on 26 April 1949, for 3 years.  He attended a leadership school and a postal school.  He was initially classified as a postal clerk, military specialty 0056, upon completion of the postal school in March 1950.  He was reassigned to Japan at that time to an Antiaircraft Artillery unit as a postal clerk.  In December 1950, he was reclassified into military specialty 4602, Antiaircraft Artillery Crewmember.  He served in that specialty for the remainder of his Army career.  The highest rank he attained was corporal in February 1951.  Later he was apparently reduced to the rank of private first class, pay grade E-3 for inefficiency, on an unknown date.  No details of this reduction are in his records.  

In May 1951, a Criminal Investigation Division (CID) agent reported to the applicant’s commander that the applicant’s name had turned up in an investigation of a homosexual ring at Asyhia Airforce Base, a United States Airforce Base in Japan and that the applicant had allegedly participated in at least two homosexual acts with military personnel at the airbase.   A search of his room found at least two incriminating letters indicating homosexual relationships. 

When confronted with this information by his unit commander, the applicant executed a four page statement in which he admitted involvement with a number of homosexuals at the airbase and provided names.  He claimed that he was only a passive partner in the activities.  He further admitted to a long time involvement in such activities, dating back as far as age 12 when he was placed in a boys home in his home state of Pennsylvania.  A psychiatric evaluation confirmed his tendencies, classified him as a sexual deviate and that he was a Class III homosexual.  Separation action was recommended.    

His command began separation action on 15 June 1951, under the provisions of Army Regulation 600-443, by reason of his homosexual activities, Class III.  His chain of command initially recommended a general discharge.  The applicant concurred in this recommendation.  The applicant had no recorded indisciplines, no lost time and his conduct and efficiency were considered excellent, although he apparently had been reduced for inefficiency.  The action was forwarded to the Department of the Army (DA) on 3 July 1951 by the Commander in Chief, Far East for final action.
On 23 July 1951, the Assistant Chief, Psychiatry and Neurology Consultants Division in the Office of the Surgeon General (OTSG), DA, responding to an inquiry from the Office of the Adjutant General (OTAG) stated that the applicant was “an overt and confirmed homosexual.”  The OTSG consultant stated that the applicant should be discharged with a UD.  

On 1 August 1951, the recommendation was returned to the applicant’s command by the DA (OTAG), which directed that because of applicant’s homosexual involvement after entry into the service, that the case should be processed in accordance with paragraph 7b(1) or (2), Army Regulation 600-443. 

On 14 August 1951, the applicant completed a statement in accordance with paragraph 7b(1), Army Regulation 600-433, in which he stated that he wished to accept a discharge for the good of the service in lieu of trial by a general court-martial.  He was not making the statement under force or coercion.  He stated that he understood he would receive a UD, that he would lose many federal and state veteran benefits and might expect to encounter substantial prejudice in civilian life.

His chain of command reprocessed the recommendation for discharge in accordance with paragraph 7(b) 1, Army Regulation 600-443, recommending approval of the discharge with a UD.  On 7 September 1951, the recorder of the Army Personnel Board reported that the applicant’s discharge under the provisions of Army Regulation 600-443 was approved with a UD.  His return to the United States was directed.  

On 15 October 1951, the applicant was discharged with a UD, in pay grade E-1, under the provisions of Army Regulation 600-443.  He was credited with 2 years, 5 months and 20 days service.  He had no lost time or recorded indisciplines.  

On 3 August 1953, the applicant personally appeared before the Army Discharge Review Board (ADRB), with counsel from the American Red Cross, and requested a change in the characterization of his discharge.  He and his counsel presented testimony.  He basically admitted his involvement in homosexual activities while in the service.  He currently was attempting to overcome his problem and had been successful.  The ADRB denied his appeal.  

Army Regulation 600-443, then in effect, provided for the separation of enlisted and officer personnel for homosexual activities.  Essentially, the regulation provided for three classes of homosexuals, whether male or female.  Class I homosexuals were cases defined as being accompanied by assault or coercion. Class II cases were defined as cases of true or confirmed homosexuals who had engaged in one or more homosexual acts, or attempted to accomplish such an act which did not fall within the definition of Class I cases.  Class III cases were defined as rare, but wherein personnel only exhibited, professed, or admitted homosexual tendencies and wherein there was no specific, provable acts or where court-martial jurisdiction did not apply.  Class I cases would be referred for trial by general court-martial.  In Class II cases, enlisted personnel could request that they be permitted to accept a UD (a discharge that was under other than honorable conditions) for the good of the service and to escape trial by general court-martial.  The individual had to acknowledge that he or she understood the possible adverse impact of such a discharge (paragraph 7b, Army Regulation 600-443).  In such cases, as well as Class III cases, the matter would be referred through command channels to OTAG at the DA.  The cases then would be referred to the Army Personnel Board which would review the case and direct the appropriate discharge action and the characterization of service.  A UD was considered appropriate in Class II cases, with a general or honorable discharge in Class III cases. 

Army Regulation 635-200 sets forth the current authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  For personnel who engage in homosexual activities while on active duty, by use of force or coercion; with a person under 16 years of age; with a subordinate which violated the normal superior/subordinate relationship; openly in public view; for compensation; aboard a military vessel or aircraft; in another area subject to military control if the conduct had, or is likely to have had, an adverse affect on discipline, good order or morale comparable to the impact of such activity aboard a vessel or aircraft, may receive a discharge under other than honorable conditions.  For other admitted homosexual personnel, their characterization of service will depend on their record of service.  

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The investigation and statement from the applicant at the time of the incidents in Japan in 1951 show that he was an admitted homosexual, who engaged in homosexual acts while on active duty with other members of the Armed Forces on Asyhia Air Force Base, Japan.  No force or coercion appears to be involved, so he was not a Class I homosexual, where trial by court-martial was mandated.  

3.  While medical personnel initially classified him as a Class III homosexual, it would appear that the DA and subsequently his command were more convinced that he was a Class II homosexual.  This is borne out by the medical review actions at the OTSG in July 1951, and the subsequent separation action taken under the provisions of paragraph 7b(1) of Army Regulation 600-443, wherein the applicant requested separation with a UD rather than stand trial by court-martial.  

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

6.  Even under current standards, the applicant would have received a discharge under other than honorable conditions, in that he admitted to at least two homosexual acts on a military installation.  Further, since the evidence of record shows that he was considered part of a “ring of homosexuals,” the Board concluded that this situation had or would have had an adverse affect on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft, and an upgrade of his discharge is not warranted.  

7.  While the applicant’s age and health problems are understood, these do not provide a basis for the Board to upgrade his discharge.  Further, determination of entitlement to veterans benefits rests with the Department of Veteran Affairs, not this Board.  

8.  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

__mdm__  __wtm___  __clg____  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction 
of Military Records

INDEX

CASE ID	AR1999029119	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19511015	
DISCHARGE AUTHORITY	AR600-443	
DISCHARGE REASON	A57.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.01	
3.	A01.13	
4.	A92.00	
5.	A92.17	
6.	A94.01