MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 February 2001
	DOCKET NUMBER:   AR2000049275

	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. Joseph A. Adriance		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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was unaware he could request an upgrade until recently and in support of his case he submits the enclosed post service character references.

EVIDENCE OF RECORD:  The applicant’s military records were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost in that fire.  

The evidence does include a National Archives (NA) Form 13038, dated 
10 August 1996.  This document confirms that the applicant entered the Regular Army on 5 December 1958 and that his service was terminated with an under other than honorable conditions (UOTHC) discharge on 22 December 1959. 

The evidence includes a Department of the Army (DA) Form 2139 (Military Pay Voucher), dated 5 February 1960, which covers the applicant’s last pay period on active duty from 1 to 22 December 1959.  This document indicates that he was being discharged UOTHC, under the provisions of Section II, Army Regulation 635-89, by reason of Homosexual acts.  

Army Regulation 635-89, in effect at the time, provided the authority for the separation of enlisted personnel for homosexuality.  It provided three classes and mandated the specific separation action to take for each as follows:  Class I-Invasion of another’s rights, general court-martial;  Class II-Acts, undesirable discharge; and Class III Tendencies, honorable or general, under honorable conditions discharge.  A change to the regulation published on 8 April 1959 indicated that members separated under Class II could receive a discharge other than UD, but that UD remained the normal discharge under these circumstances. 

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 Board noted the applicant’s request for an upgrade to his discharge based primarily on his good post service conduct.  However, while the Board wishes to congratulate the applicant on his post service accomplishments, as attested to in his letters of support, this factor alone is not sufficiently mitigating to warrant relief.  

2.  The applicant’s records were not available to the Board for review and there are no facts and circumstances concerning the specific events that led to the his discharge from the Army.  However, there are valid documents on file which confirm the reason and characterization for the applicant’s discharge.  

3.  The available evidence and the independent evidence provided by the applicant provide no indication that his service was sufficiently meritorious to warrant an upgrade to his discharge.  Further, there is no indication that there was any error or injustice associated with his separation processing.  

4.  In the absence of evidence to the contrary, the Board presumes that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the applicant’s discharge is commensurate with his overall available record of service.  

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

___sk ___  __tsk ___  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049275	
SUFFIX		
RECON		
DATE BOARDED	2001/02/22	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1959/12/22	
DISCHARGE AUTHORITY	AR 635-89	
DISCHARGE REASON	Homosexual Acts	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.