MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2000                   
	DOCKET NUMBER:   AR2000042446

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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:  That his undesirable, under other than honorable conditions (UOTHC) discharge be upgraded to honorable or at least general under honorable conditions.

APPLICANT STATES:  That he started to have chronic, not episodic, depression which led to his behavior becoming undesirable.  He was unjustly discharged while he was too sick to know how to defend himself.  The grounds for his UOTHC discharge no longer exist because homosexual preference by itself, without homosexual activity while on active duty, is no longer grounds for a UOTHC discharge.  His mother’s health and family situation plus his emotional and mental health at the time should be taken into consideration.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 20 April 1942.  He enlisted in the Regular Army on                    25 September 1962.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  

On 12 March 1963, the applicant completed an airborne physical examination and was found qualified for airborne training.  He completed airborne training and was awarded the Parachutist Badge on 12 April 1963.

On 17 April 1963, the applicant’s mother was hospitalized and diagnosed with involutional psychosis, depressed and agitated type with probably paranoia.  Certification was recommended.

The applicant apparently was granted an emergency leave.  He apparently had a younger brother and sister who lived with his mother and other siblings who either had their own families to care for or otherwise could not take care of the family situation.  The applicant apparently failed to return from leave.  He was reported as absent without leave (AWOL) on 10 May 1963.  

Apparently the applicant began to have emotional problems while AWOL.  A     30 November 1999 statement from his (at the time) family doctor notes that
the applicant was seen by him sometime in early 1964.  He states he renewed the applicant’s psycho-tropic drugs (Ritalin and Thorazine) and gave him a referral to a psychiatrist for further evaluation and treatment.  

The applicant returned to military control on 12 January 1964.

On 25 February 1964, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to show up for reveille formation.

On 8 March 1964, the applicant was medically treated after he was found hanging in the stockade after being apprehended for trying to leave.  There was no loss of consciousness.  Evidence of psychotic thinking was found and he was diagnosed with a depressive reaction.  He was hospitalized in the psychiatric ward at Valley Forge General Hospital for observation.  No disease was found and he was released to duty on 12 March 1964.

The applicant’s separation paperwork is not available.  On 25 September 1962, he was discharged under the provisions of Army Regulation 635-89 with a discharge UOTHC.  His Report of Transfer or Discharge, DD Form 214, shows he was given a separation program number of 253 (homosexual (board action)).
He had completed 11 months and 12 days of creditable active service and had 218 days of lost time.

In a 21 March 2000 VA hearing, the applicant was asked how the military came to know he was homosexual.  He stated that the commanding officer was gay, they would talk together and the truth somehow came out.  

Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. Homosexuals were divided into three classes.  Class I included those cases which involved an invasion of the rights of another person as where the homosexual act is accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively.

Army Regulation 635-200, Chapter 15, prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service the soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under     16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other soldiers of the Armed Forces.  In all other cases, the type of discharge will reflect the character of the soldier’s 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 has failed to submit evidence that would satisfy this requirement and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Without having the discharge paperwork to review, the Board cannot determine that homosexuality was the sole reason for which the applicant was recommended for discharge.  It would be logical to presume that the applicant’s lengthy AWOL was also part of the basis for the recommendation, in which case a UOTHC discharge would still be appropriate under current standards.

3.  The Board takes cognizance of the applicant’s family problems but notes that there is no evidence to show that he attempted to take militarily acceptable actions (i. e., requesting a compassionate reassignment or a hardship discharge) to resolve those problems.  

4.  There is no evidence of record to show the applicant was ill at the time he went AWOL.  The doctor’s letter provided by him as evidence to show he was ill notes that he was seen by that doctor in early 1964, about 7 months after he departed AWOL.  It does note that the doctor “renewed” the applicant’s medications but does not state when the medications were initially prescribed.

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

__aao___  __mhm___  __tfb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042446	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19640514	
DISCHARGE AUTHORITY	AR 635-89 	
DISCHARGE REASON	A46.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.