MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           22 February 2001
	DOCKET NUMBER:  AR2000043275

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Stanley Kelley		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 the Board remove from her permanent record all inferences of alleged homosexual conduct.  

APPLICANT ATTORNEY STATES:  In effect: 1).  That the investigation that took place is directly in conflict with the 1994, Department of Defense “Don’t Ask, Don’t Tell” policy.  Investigations should only be initiated upon a commander’s receipt of credible information that a service member has engaged in homosexual conduct.  There was no substantive basis for expanding the investigation of a drill sergeant’s homosexual conduct to include the conduct of the applicant.  2).  He contends that the applicant’s command pressured her into signing a waiver by advising her that she could have been restricted to the barracks for up to a year awaiting a personal appearance before an Administrative Review Board.  3).  He contends that the waivers that the applicant signed are contradictory.  She did not sign the conditional waiver to admit homosexuality; she signed the waiver to avoid spending up to 12 months restricted to the barracks.  4).  He contends that the record of investigation is improper material for a permanent service record because the underlying issue was never decided on its merits.  The Army chose to dispense the case without any formal or informal judicial proceeding to decide the merits.  Therefore, the administrative discharge has no legal relevance and should not be a part of the permanent record.  He believes that the investigation centered on uncorroborated testimony of a select few trainees in a highly stressful environment.   5).  Additionally, the applicant contends that many members of her platoon were pressured to make statements either through intimidation or incentive.  

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

That on 11 May 1994, she enlisted in the Regular Army for 5 years and training in military occupational specialty (MOS) 95B (Military Police).  On 16 May 1994, she began her one-station-unit-training at Fort McClellan Alabama. 

While assigned to Fort McClellan, the applicant became the subject of an investigation as a result of a commander’s inquiry.  An emotional female specialist, on 17 August 1994, requested that a drill sergeant stop another drill sergeant (a female) from “interfering between her and the applicant.”  The specialist indicated that a female drill sergeant had betrayed her trust by disclosing the contents of a very personal issue with the applicant. 

The commander’s inquiry line of questioning centered on a non-professional relationship that may have existed between a female drill sergeant and the specialist with whom the applicant was involved.

On 19 August 1994, the investigating officer consulted with the Judge Advocate’s office and was informed that enough evidence existed to pursue Article
92 (failure to obey order or regulation) infractions and probably homosexuality.  The investigating officer was advised to interview the principal informants again on the homosexual issue.  The principal informants consisted of the applicant and the specialist.

While the investigating officer was interviewing the applicant a second time, he received a phone call from an unidentified caller that contended that another trainee had observed the applicant and the specialist engaging in graphic homosexual activity that included oral copulation by each partner, breast rubbing, kissing and caressing.  This trainee’s sworn statement is included in the applicant’s MPRJ along with several others that state the applicant was observed caressing the specialist’s buttocks; the applicant was observed fondling the breast of the specialist; and inappropriately touching the specialist in a suggestive manner.  The applicant and the specialist were also observed holding hands, cuddling and constantly sitting or laying on each other’s bunk.

On 31 August 1994, the applicant underwent a mental status evaluation as a part of the chapter 15 separation proceedings.  The applicant reported no significant adjustment proceedings during initial entry training.  There was no indication of preservice psychopathology.  Her mental capacity was determined to be within normal limits with no evidence of disturbance in content or form of thought. “She was psychiatrically cleared for administrative action deemed appropriate by her command.  There was no evidence of psychiatric disorder that warranted disposition through medical channels.  She was mentally responsible and able to distinguish any wrongfulness of conduct and to conform her behavior to the requirements of the military law/regulations.”  

On 31 August 1994, the applicant’s unit commander notified her that he was initiating action to separate her prior to the expiration of her term of service under the provisions of chapter 15, Army Regulation 635-200, by reason of homosexuality. 

On an unknown date, the applicant authenticated a statement with her signature in which she requested consideration of her case by a board of officers and representation by legal counsel.  She also declined the opportunity to submit a statement in her own behalf, and she acknowledged that she understood the ramifications of receiving a UD.  

On an unknown date, the applicant signed a request for a conditional waiver in which she voluntarily waived consideration of her case by a board of officers contingent upon receiving a characterization of service no less favorable than an 

entry level separation or uncharacterized discharge.  She stated that she had consulted with legal counsel concerning the basis for the contemplated action to separate her for homosexual conduct (acts) prior to requesting the waiver.  Again, she declined the opportunity to submit a statement in her own behalf.  

In an undated separation recommendation, the applicant’s commander stated that after considering all the matters presented to include the applicant’s duty performance, and her training status, he recommended that she be discharged in an entry level status with an uncharacterized discharge.   He indicated that her presence in the unit adversely affected the unit’s ability to maintain good order, discipline and morale. 

On 21 September 1994, competent authority approved the recommendation and directed the issuance of an uncharacterized discharge under the provisions of chapter 15, Army Regulation 635-200, for homosexuality.  The approval authority stated that records applicable to the applicant’s case would be filed in her permanent records/Military Personnel Records Jacket (MPRJ). 

On 23 September 1994, she was separated under the provisions of chapter 15, Army Regulation 635-20, for a homosexual act, with an uncharacterized discharge.  She had completed 4 months and 13 days of active military service. 

On 10 June 1997, the Army Discharge Review Board (ADRB) changed the narrative reason on the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) from homosexual act to Secretarial Authority.  The ADRB felt that an inconsistency existed between whether she should have been separated under the provisions of chapter 15, for a homosexual act or under the provisions of chapter 11, for entry level status and conduct.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 15-4 provides, in part, when the sole basis for separation is homosexuality, the type of discharge will reflect the character of the soldier’s service.  A discharge under other than honorable conditions may be issued only if there is a finding that during the current term of service the soldier attempted, solicited or committed a homosexual act by 
(1) using force, coercion or intimidation, (2) with a person under 16 years of age, (3) with a subordinate in circumstances that violate customary military superior-subordinate relationships, (4)  openly in public view, (5)  for compensation, 
(6) aboard a military vessel or aircraft or (7) in another location subject to military control.  

Army Regulation 635-200 prescribes the policies governing the disposition of proceedings/ records of enlisted personnel.  Paragraph 1-15 of this regulation provides that the original copy of proceedings will be filed in the permanent section of the soldier's MPRJ.  
Army Regulation 640-10, table 3-1 and table 4-1, provide that elimination board proceedings, administrative discharge actions, resignations in lieu of board actions, separation for the good of the service actions and all allied documents that set forth details and form a basis for the separation or discharge of a military member will be filed in the MPRJ.

Army Regulation 600-8-14 (Military Personnel Information Management/Records prescribes the policies governing maintaining official military files to include the OMPF, the MPRJ, the Career Management Individual Files, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file.  That paragraph provides for appeals for transfer/ removal of the unfavorable information by this Board or by certain other Departmental agencies, to include the Department of Army Suitability Evaluation Board.

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 the aforementioned requirement.

2.  The applicant’s discharge process was administratively correct and it was in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized her rights.

3.  The Board found no evidence of arbitrary or capricious actions by the command.  The Board concluded that the applicant’s command appropriately initiated a commander’s inquiry when evidence indicated that an unprofessional relationship may have existed between a female drill sergeant and a trainee with whom the applicant was involved.  There is no evidence that the statements from other trainees were improperly obtained.

4.  The applicant chose to request an administrative discharge rather than risk the consequences of facing her accusers and an administrative separation board.  Although she may now feel she made the wrong choice, there are no provisions for changing her mind at this late date.  

5.  There is no evidence in the available records and the applicant has presented no evidence to support the contention that she was coerced into signing either waiver.  Both waivers were signed after she was afforded legal representation.  

6.  The basis for the applicant’s discharge is contained in the separation packet.  Army Regulation 640-10, tales 3-1 and 4-1 provides that the separation packet to include all allied documents are to be filed in the MPRJ.  Therefore, since she was appropriately discharged, the Board concludes that the unfavorable information describing the incidents that led to her separation is properly filed in her MPRJ in accordance with applicable separation and record filing regulations.

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

__rvo___  __tsk____  __sk ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000043275	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010222	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19940923	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	Secretarial Authority	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.		

A 12 September 1966, a Criminal Investigation Division (CID) report of Investigation revealed that on 28 June 1966, five solders observed the applicant engaging in oral copulation with a male soldier.  The act of sodomy was reported to have taken place on an Army physical fitness test stand in the rear of a building at Fort Bliss.

The commander’s inquiry line of questioning centered on a non-professional relationship that may have developed between a female drill sergeant and the specialist.

The female drill sergeant admitted to conversing with the specialist for long periods of time; that she had left news papers for her on her bunk; and that she had discussed possible meetings after graduation.  The investigation revealed that the female drill sergeant had written a letter to the specialist.  The specialist contend that the drill sergeant stated that she was attracted to her and that she maintained a current relationship with a trainee from a previous cycle.  The drill sergeant contend that the contents of the letter were about how to be a better leader.