MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 December 2000  
	DOCKET NUMBER:   AR2000041828

	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 Falrey		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright		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 absent without leave (AWOL) from his unit and had an automobile accident.  He further states that his command proceeded to discharge him and that he was given two options.  The first option was to take the UD, or second to undergo court-martial proceedings.  He chose to accept the UD.  He points out that he should have been discharged and sent home because of his medical disability (epilepsy).  He states that his epilepsy started while he was stationed at Fort Jackson South Carolina, possibly in 1954.  In support of his request, he submits a copy of a DA AGO Form 59 (Undesirable Discharge Certificate), dated 14 December 1956; a copy of a DA Form 
1096 (Department of the Army Education Certificate), dated 1 August 
1956 showing his completion of eighth grade classes; and a copy of a National Archives Form 13038 (United States of America Certification of Military Service), dated 6 April 2000. 

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from partially reconstructed personnel records.

The available records indicate that he served in the United States Army from 
1 June 1954 to 14 December 1956, in military occupational specialty (MOS) 
710 (Ordnance).  

On 14 December 1956, Headquarters, Antiaircraft Artillery and Guided Missile Center, Fort Bliss, Texas, issued LO TP 12-30, Subject: Separation of Personnel directing the applicant’s discharge effective 14 December 1956.  The letter order showed that he was to be discharged from the Army as a result of board action, under the provisions of Army Regulation 635-89, by reason of homosexuality, Class II, separation code 257, not by reason of physical disability.  He had completed 2 years 6 months and 13 days of active military service and his rank was private, pay grade E-1.  The records that are available do not show that he was listed as AWOL, had lost time or had any recorded indisciplines. 

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).  Individuals, separated received a characterization of service as under other than honorable conditions with a UD.

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.  

The record does not indicate that the applicant ever made application to the Army Discharge Review Board for a review 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 has failed to submit evidence that would satisfy this requirement.

2.  While no medical records are available, normal discharge processing would have required a complete Army separation physical examination and a mental status evaluation at the time of his discharge.  In the absence of medical evidence, the Board must presume regularity in Government operations and concludes that no basis has been provided to show that he was medically unfit for separation due to a medical condition (epilepsy).

3.  Further, there is no evidence that court-martial charges were pending due to his being AWOL.  It appears that his discharge was the result of his misconduct, which warranted discharge under Army Regulation 635-69 for homosexual activities.  There is no indication of procedural errors, which would have jeopardized his rights in the discharge process.  Therefore, the Board presumes regularity in the discharge process.

4.  Additionally, even under the current discharge standards he would have received an under other than honorable conditions discharge for homosexual activities.

5.  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

__JPH___  _KLW___  ___RSW_  DENY APPLICATION

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

INDEX

CASE ID	AR2000041828 	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19561214	
DISCHARGE AUTHORITY	AR 635-89	
DISCHARGE REASON	MISCONDUCT 	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A144.59	
2.	A123.01	
3.	A61.02	
4.	A5900	
5.		
6.