MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 November 2001                    
	DOCKET NUMBER:   AR2001061136

	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. Deborah S. Jacobs 		Chairperson	
	Mr. Elzey J. Arledge, Jr. 		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that his discharge from the Correctional Training Facility at Fort Riley, Kansas, was under duress.  He contends that he signed a fraudulent discharge of lies.  His application indicates that he provided a letter from the Brentwood Mental Facility in Los Angeles, California.  However, this letter was not available for consideration.  

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

The applicant was inducted on 11 February 1969.  

While in basic training, the applicant went absent without leave (AWOL) on 
1 March 1969 and returned to military control on 5 March 1969.  He went AWOL again on 13 March 1969 and returned to military control on 10 April 1969.

On 24 April 1969, the applicant was convicted by a special court-martial of the two AWOL periods.  He was sentenced to be confined at hard labor for 6 months and to forfeit $41 per month for 6 months.  On 26 May 1969, the convening authority approved the sentence but suspended the portion of the sentence to confinement for 6 months.  On 28 May 1969, the suspended portion of the applicant’s sentence to confinement was vacated.  

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on 17 July 1969 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-89 for acceptance of discharge as a result of board action (Class II homosexual).  He had served 2 months and 17 days of total active service and had 70 days lost time due to AWOL and confinement.

On 17 September 1979, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.  Part IV (Prehearing Review), Section A (He and/or Prereview Officer Evaluation) on the applicant’s OSA Form 172 (Discharge Review Board Case Report and Directive) states “During confinement he was diagnosed as a Homosexual, manifested by admission of numerous sexual relations with other men.  Command initiated action and applicant made no statement at time of discharge. A witness statement relates one incident of sodomy in which applicant participated.  During an investigation applicant admitted to taking part in Homosexual acts”.

Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation states, in pertinent part, that Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 
16 years) during military service.  Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate. 

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 contentions that his discharge from the Correctional Training Facility at Fort Riley, Kansas, was under duress and that he signed a fraudulent discharge of lies.  However, there is no evidence of record, and the applicant has provided no evidence, to support these contentions. 

2.  The Board reviewed the applicant’s brief record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.

4.  Accordingly, the type of discharge directed and the reasons for separation  appear to be appropriate.

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

DSJ___  EJA_____  DPH_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061136	
SUFFIX		
RECON		
DATE BOARDED	20011106	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19690717	
DISCHARGE AUTHORITY	AR 635-89  	
DISCHARGE REASON	Acceptance of discharge as a result of board action (Class II homosexual)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.