MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           29 August 2000                  
	DOCKET NUMBER:   AR2000038390

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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:  Reconsideration of his earlier appeal to correct his records by  upgrading his discharge to honorable.

APPLICANT STATES:  In effect, he defers to his counsel.

COUNSEL CONTENDS:  That the discharge should be upgraded because the applicant’s behavior was mitigated by the use or abuse of alcohol.  The discharge was too harsh considering the applicant’s overall record of service.  The applicant’s admission of a homosexual act was a violation of his First Amendment rights.  Counsel avers that the Board must upgrade the applicant's discharge and cites court cases to substantiate this contention.  He also contends that the Board must recharacterize the applicant’s discharge using the same criteria that are used to characterize the discharge of individuals discharge at the expiration of their term of service (ETS).  He cites case law to substantiate this argument.  He further argues and cites case law to show that the Federal courts have held that a less than honorable discharge for conduct that does not degrade performance or impact directly on the military service is a violation of due process.  Counsel submits copies of several statements made at the time of the applicant’s discharge  and six statements by members of the applicant’s church.   Counsel also requests that the failure to timely file be waived.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 21 January 1999 (COPY ATTACHED).

Counsel’s submissions are new evidence and argument that require Board consideration.

A 7 November 1979 statement from a specialist related that the applicant was an honest and reliable soldier.  He reported that it was his understanding that the applicant had been drinking and fell asleep.  The next day, the applicant did not remember what had happened.

A Specialist P____ made a sworn statement at the time of the investigation relates that the applicant and the other soldier who participated in the homosexual act in the barracks “were both drinking and making a lot of noise.”

The applicant’s immediate supervisor made a 7 November 1979 statement  to the effect that the applicant caused no trouble, was well disciplined, was a good man to work with and possibly a good leader.

The applicant’s wife writes that they have been married since 1995.  He is a loving, supportive hardworking husband with strong Christian family values.  They are expecting their first child.
A minister relates that the applicant is a church employee.  He is an eager worker with a drive to learn.  His maintenance supervisor at the church says he fulfills his responsibilities and has a good work ethic.  Another individual states the applicant has been a member for several years and that his work was carefully and thoughtfully performed.  The pastor of the church writes that the applicant is an upstanding, honest, energetic, dedicated individual.  The associate pastor writes that the applicant has been a member of the church since 1994 and that he is dependable and hard working.

The sworn statement rendered by the applicant during the investigation shows that he was advised of his rights.  He relates that he was “very drunk.”  When asked why he did not stop the other man, he replied “I don’t know, I just did not.

The Manual for Courts-Martial, as then in effect, and the edition currently effective, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

The First Amendment of the Constitution states:  Congress shall make no law respecting establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Department of Defense Directive 1332.28 provides the policy and guidance for discharge review.  It states, in pertinent part, that “The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service.  No factors shall be established that require automatic change or denial in [a] discharge.  Neither a DRB [discharge review board] or a Secretary of the Military department concerned shall be bound by any methodology of weighting of the factors in reaching a determination.”

The directive further provides that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.

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.  The applicant’s claim that he was drunk does not mitigate his behavior.  Intoxication is not a defense or an excuse for aberrant behavior.  That this standard of conduct is accepted not only by the military but also by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

2.  The applicant’s behavior did impact directly upon the service.  His participation in a homosexual act with another soldier in the barracks had a direct impact on good order and discipline and the quality of life of his fellow soldiers.  That act characterizes his service.  Contrary to counsel’s assertion, there is no requirement to evaluate the applicant’s overall record of service as if he had served to his ETS. 

3.  Counsel did not elaborate as to which of the rights, enumerated under the First Amendment of the Constitution, he believes were violated in the discharge process and the Board found none.  Furthermore, he cites cases without pointing out specifically how or why they are applicable in this case. 

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  However, if there had been an impropriety this Board is required to determine if that error was material.  There is no provision of law or regulation that requires an automatic upgrade of a discharge.
  
5.  The evidence illuminating the applicant’s recent post-service behavior and conduct are noted.  However, these factors are not so exceptionally meritorious as to warrant the requested relief. 

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

___JDM_  ___RA  __  __CG___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038390	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19800109	
DISCHARGE AUTHORITY	AR 635-200, ch14	
DISCHARGE REASON	A59.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A93.21	
2.		
3.		
4.		
5.		
6.