MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 AUGUST 2001
	DOCKET NUMBER:   AR2001055832

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 under other than honorable conditions discharge be upgraded.

APPLICANT STATES:  In effect, that he has had “a perfect record through[out] life and the charges that occurred while on leave have been sealed through the courts.”  He notes that he is currently having difficulty paying his medical expenses and needs assistance with prescriptions.  In support of his request he submits a copy of a termination agreement from his civilian employer and a copy of his voter registration card.

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

He was inducted and entered active duty on 7 November 1961 at the age of 23.  He successfully completed basic and advanced individual training and in March 1962 was promoted to pay grade E-2 and assigned to Fort Jay, New York.

On 4 June 1962 he was tried and convicted in Adolescent Court, Borough of Manhattan, City of New York of disorderly conduct involving moral turpitude.  His sentence, which was not specified in available records, was suspended.

As a result of his civil court conviction the applicant’s unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-206 (conviction by civil court).  As part of the separation process the applicant was referred for a psychiatric evaluation.  The evaluating physician noted that the applicant’s civilian charges involved homosexual acts but the applicant denied being a homosexual.  

The unit commander’s recommendation was approved and on 30 July 1962 the applicant was discharged under other than honorable conditions.  At the time of his separation he had 8 months and 23 days of active Federal service.

Army Regulation 635-206, in effect at the time, provided for the administrative separation of soldiers convicted by a civil court of an offense involving moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.  An individual discharged for conviction by a civil court normally will be furnished an undesirable discharge except that an honorable or general discharge may be given if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case.

Today Army Regulation 635-200 establishes the policies and provisions for the administrative separation of enlisted soldiers.  Chapter 14 of that regulation provides for the administrative separation of soldiers convicted by civil authorities when a punitive discharge would be authorized for the same or a closely related offense or when the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.

Chapter 15 of that regulation provides for the administrative separation for homosexuality.  It states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be warranted when the soldier attempted, solicited, or committed a homosexual act with a person under 16 years of age or openly in public view.

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 has noted the contentions of the applicant.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The discharge process was in accordance with applicable law and regulations and the applicant’s service was appropriately characterized.

2.  While the Board is empathetic, the applicant’s personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  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 that requirement.

4.  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

__JNS __  __RTD __  __DPH __  DENY APPLICATION

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

INDEX

CASE ID	AR2001055832	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010828	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.