MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     .

	BOARD DATE:           6 November 2001                   
	DOCKET NUMBER:   AR2001058100

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Mr. Elzey J. Arledge		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:  That his under other than honorable conditions discharge (UOTHC) be upgraded to honorable.

APPLICANT STATES:  In effect, that this discharge should be upgraded because he had completed most of his active duty time and that this was his only act of misconduct. 

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

He enlisted in the Regular Army on 27 July 1983 for a period of 3 years and the U.S. Army Station of Choice Enlistment Option – Fort Ord, California.  Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 54E, Nuclear Biological Chemical Specialist and assigned to Fort Ord.

On 6 March 1985, the applicant departed Fort Ord enroute to the Federal Republic of Germany (FRG).  On 20 April 1985, the applicant was assigned to the 43rd Chemical Detachment, Berlin Brigade, FRG.

On 3 July 1985, the Berlin Criminal Investigation Division (CID) office initiated an investigation when it was brought to their attention by the company commander that the applicant and another soldier were observed in what might have been homosexual acts.  CID submitted a final Report of Investigation (ROI) which disclosed that the applicant performed an act of fellatio on another soldier.  The ROI was coordinated with the Staff Judge Advocate’s (SJA) Office, Berlin, Germany.  The SJA stated that there was probable cause to believe that both soldiers had committed sodomy.

On 3 September 1985, the applicant was notified that his company commander was initiating action to separate him from the Army under the provisions of chapter 15, paragraph 15-3a, Army Regulation (AR) 635-200 for homosexual activities.  His company commander advised him that a UOTHC discharge was the lowest characterization of service he could receive.

On 10 September 1985, after being advised by counsel of the contemplated separation action under the provisions of chapter 15, AR 635-200, the applicant requested consideration of his case by a board of officers; personal appearance before that board; and declined to submit a statement in his own behalf.  On 24 September 1985, after again consulting with counsel, the applicant waived his right to a board of officers.

On 16 October 1985, the appropriate authority approved the applicant’s separation with a UOTHC discharge.  Accordingly, on 25 October 1985, the applicant was discharged from the Army after completing 2 years, 2 months, and 29 days of creditable military service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.

There is no evidence of record that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.

2.  There was a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense. The Board noted that the applicant engaged in a homosexual act while a member of the military service and discharge proceedings were properly initiated under the provisions of chapter 15, AR 635-200.  The applicant, as a soldier, had the duty to support and abide by the Army’s policies on homosexuality and or homosexual activity.  By engaging in a homosexual act, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a general or fully honorable discharge.  The Board was satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  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

__DSJ __  __DPH__  ___EJA __  DENY APPLICATION

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

INDEX

CASE ID	AR2001058100	
SUFFIX		
RECON		
DATE BOARDED	20011106	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19851025	
DISCHARGE AUTHORITY	AR 635-200, c15 	
DISCHARGE REASON	Homosexuality	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9201	
2.		
3.		
4.		
5.		
6.