MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR2001052858

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward 		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. James E. Anderholm 		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that it was unjust to give him a discharge under other than honorable conditions.  He knows that he went AWOL for many days but he was very young at the time and did not know how to handle being gay in the Army.  When his company sergeant and commander found out that he was gay, he was beaten on several occasions and was treated terribly.  He was afraid for his life and thought the only way out was to run away.  In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge); two character reference letters; a Certificate of Completion from Southern Ohio Skills Center; a copy of his Two-Year Associate in Applied Business Diploma from Ohio University, and a copy of his grade scores from Marion Business College.

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

At age 17, with parental consent, the applicant enlisted on 28 August 1964 for a period of 3 years.  

On 8 December 1964 the applicant was convicted by a special court-martial of being AWOL from 3 October 1964 to 12 November 1964.  He was sentenced to be confined at hard labor for 10 days.  The convening authority approved the sentence on 10 December 1964. 

On 19 February 1965 the applicant was convicted by a special court-martial of being AWOL from 20 January 1965 to 5 February 1965.  He was sentenced to be confined at hard labor for 6 months and forfeit $52.00 pay per month for
6 months.  The convening authority approved the sentence on 2 March 1965.

The applicant underwent a psychiatric evaluation and medical examination and was cleared for administrative separation.

On 17 March 1965 the company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness with an undesirable discharge.  He cited the applicant’s two special court-martial convictions for being AWOL and his adamant attitude to go AWOL when the opportunity permits.   

On 17 March 1965, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived representation by counsel and elected not to submit a statement in his own behalf.

The intermediate commanders recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness with an undesirable discharge.

On 24 March 1965 the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-208, for unfitness.  He also directed that the applicant be furnished an Undesirable Discharge Certificate. 

On 27 March 1965 the unexecuted portion of the sentence to confinement at hard labor for 6 months was remitted effective the date of the applicant’s administrative discharge.

On 30 March 1965, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-208, for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  He had served 2 months and 15 days of total active service with 138 days lost due to AWOL and confinement.

There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate. 

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 considered the applicant’s contention that it was unjust to give him a discharge under other than honorable conditions.  However, the Board reviewed the applicant’s brief record of service which included two special court-martial convictions and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

2.  There is no evidence of record, and the applicant has provided no evidence, to support his contention that when his company sergeant and commander found out that he was gay, he was beaten on several occasions and was treated terribly.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  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.

6.  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

SVW___  GDP_____  JEA____  DENY APPLICATION

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

INDEX

CASE ID	AR2001052858	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19650330	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.