MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR2000035361

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 an honorable discharge.

APPLICANT STATES:  In essence, that after taking education and information classes provided by the Army, he understands it is very easy to upgrade his current discharge.  He further, states that “others have been upgraded who were really gay”.  In support of his application he refers to character references in his file in connection with his application to the Army Discharge Review Board (ADRB) in 1983.

EVIDENCE OF RECORD:  Facts and circumstances and the majority of his military records are missing.  The following information was developed from partial records and a DA Form 172 (Army Council of Review Boards Case Report & Directive), dated 11 August 1983. 

The applicant was serving on active duty as a Reservist, with the rank of sergeant, at Fort Knox, Kentucky.  On 22 July 1957, the applicant’s commander conducted an inquiry into his possible involvement in homosexual activities within his unit at Fort Knox.  The allegation was made by a trainee directly under the applicant’s leadership.  The trainee reported, in essence, that the applicant conducted training classes in his room for several trainees.  He then excused everyone except the reporting trainee, and then would make sexual advances on him.  On the last day of classes, the applicant attempted to place his arm around his neck and to entice him to perform fellatio.  

The commander called the applicant in and informed him of his rights under Article 31 of the Uniform Code of Military Justice and explained to him the allegations.   The applicant initially denied any knowledge of the incidents.  Later in the day, the applicant returned and asked for a meeting with his accusor, since he now knew who it was.  The commander brought all parties together and during the interview, the soldier who initially made the allegation retracted his story by saying that he had lied.

On this same day, the unit commander informed the Military Police and the Criminal Investigator Division (CID) at Fort Knox.  An investigation was initiated by the CID.  The investigation disclosed that during June and July 1957, the applicant engaged in several acts of mutual masturbation with another soldier, who was a trainee, and whom he supervised.  

On 25 July 1957, the applicant completed a DA Form 19-24 (Statement) for CID the investigator.  He stated that he first noticed the trainee who accused him of the homosexual acts, because of personal hygiene reasons.  He called him to his room as he normally did with people who need “straightening out”.  Over the next couple of days he called the trainee to his room or approached him in the shower area for further lessons on methods of showering, to include cleansing of private parts.  On at least one occasion he had to personally demonstrate the proper technique by using his own body parts.  He stated that this was the extent of their “classes” in personal hygiene and was as far as any “homosexual tendencies” went.  In essence, he claimed that as for the right or wrong of this matter, he was fully aware that he has probably using the wrong “policy” and in the eyes of society he had done wrong.

On 26 July 1957, the CID agent provided an initial report of the homosexual actions by the applicant to the unit commander.  A search of the applicant’s room was conducted by the CID and the commander to look for additional evidence.  During the search, the applicant admitted his guilt to a certain extent.  The unit commander then placed the situation into the hands of the CID. 

On 13 August 1957, the applicant was referred for a neuropsychiatric examination at the Ireland Army Hospital, Fort Knox.  The examination determined that the applicant admitted that he began his relationships with his trainees and several others by trying to stress the importance of cleanliness to them and in the course of this he got more involved and engaged in mutual masturbation.  He stated that he participated in mutual masturbation since he was 13 years old, from eighth grade through college.  He stated that he had a number of passive homosexual acts during college in which a homosexual friend performed fellatio on him.  He explained that he seemed to be attracted to these people.  The examining physician concluded that he was not mentally ill and that he was able to distinguish right from wrong and was able to adhere to the right.  Therefore, under the provisions of Army Regulation 635-89, the doctor determined that he should be classified as a class II homosexual.  He also felt that attempts at rehabilitation through confinement or psychiatric help in the Army would be of no value and would be ineffectual.  Administrative separation action was recommended.    

On 10 October 1957, Special Orders Number 242, Headquarters, U. S. Army Armor Center, Fort Knox, confirmed the command’s approval of the applicant’s discharge under Army Regulations 635-205 and 635-89 with the rank of private, pay grade E-2, with a UD.  However, there is no separation document (DD Form 214) in the records.  

It is also noted that a DA Form 19-65 (Report of Investigation-Military Police), dated 18 November l957, contained in the applicant’s military records shows 
that he was discharged with a UD, under the provisions of Army Regulations 635-205 and 635-89, for reasons of unfitness-homosexual acts.  He was credited with 2 years, 5 months and 20 days service.  He had no lost time. 

Army Regulation 635-89, then in effect, set forth the authority, criteria, and procedures for the disposition of military personnel who were determined to be homosexuals.  The regulation permitted soldiers to request discharge in lieu of facing trial by court-martial.  If the soldier's request was accepted, a UD would be issued unless extraordinary circumstances warranted a discharge under honorable conditions.  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 wherein personnel subject to court-martial jurisdiction, including overt, confirmed homosexuals, have engaged in one or more provable homosexual acts not within the purview of class I.  Class III cases were defined as overt, confirmed homosexuals who have not engaged in any homosexual acts (as defined in b above) since entry into military service, and individuals who possess homosexual tendencies to such a degree as to render them unsuitable for military service.

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.  

On 11 August 1983, the ADRB denied his request for upgrade of his discharge.

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 these requirements.

2.  The investigation and statement from the applicant at the time of the incidents showed that he engaged in homosexual acts while on active duty, and one military installation with another soldier, a trainee who was his subordinate. The applicant initiated the acts of misconduct. 

3.  The discharge proceedings are not a matter of record.  However, in the absence of evidence to the contrary, the Board presumes regularity in the discharge process. 

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Even under current regulations, the same type of discharge and characterization of service would be appropriate.  

5.  The letters of reference with his application to the ADRB were reviewed by this Board.  It is noted that they attest to his good character and post service adjustment. However, the Board finds that since they were submitted after his period of military service, they do not provide a basis to upgrade his characterization of service for acts of misconduct while on active duty in 1957.  

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

__ew____  __mvt___  __kwl ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035361	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19511015	
DISCHARGE AUTHORITY	AR635-208 & 635-89	
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