MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 September 2003
	DOCKET NUMBER:   AR2003083634

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Regan K. Smith		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 GD (general discharge) by reason of chapter 15, Army Regulation 635-200, homosexuality, be upgraded to an HD (honorable discharge) and that the separation authority and narrative reason for separation be changed.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He was separated from the Regular Army as a Sergeant First Class (SFC) on 10 February 1984 after serving 17 years, 9 months, and 5 days of creditable active Federal service.  He received a GD; the separation authority was chapter 15, paragraph 15-3a, Army Regulation (AR) 635-200; and the narrative reason for separation was "engaged, attempted to engage in, or solicited another to engage in homosexual act(s)."

In 1983, the applicant was an instructor at the US Army Quartermaster School, Fort Lee, Virginia.  In July 1983, three male soldiers-in-training came to their company First Sergeant and wrote statements that the applicant had attempted to engage them in homosexual acts.  The statements were processed and turned over to the Criminal Investigation Division (CID).  On 9 August 1983, the CID completed its investigation and determined that no criminal activity had occurred.

The CID investigation into the 1983 allegations uncovered additional information pertaining to the applicant's homosexual activities.  On 22 April 1975, he was titled in a CID Report of Investigation (ROI) for committing indecent or lewd acts with another male soldier, and sodomy.  Also, on 26 November 1979, he was given a General Officer administrative letter of reprimand (GOLOR) for twice taking male soldiers-in-training to his off-post quarters and soliciting acts of oral sodomy.

On 2 November 1983, the applicant was notified by his company commander that he was being recommended for separation under the provisions of paragraph 15-3a, AR 635-200 for homosexuality.  The above three incidents were cited as the reason for the proposed action.  The applicant acknowledged notification, requested legal counsel, and requested a hearing before a board of officers.

On 9 January 1984, a board of officers convened to hear testimony and review evidence to determine whether the applicant should be separated for homosexuality.  The board concluded that the applicant was undesirable for further retention because of his frequent acts of solicitation to commit homosexual acts, and that his rehabilitation was not possible.  The board recommended that he be discharged from the Army because of homosexuality with issuance of a GD.

On 10 February 1984, the applicant was separated with a GD under the provisions of chapter 15, paragraph 15-3a, AR 635-200, for homosexual acts.  He had 1 year, 7 months, and 2 days of creditable service on his current period of service, and a total of 17 years, 9 months, and 5 days of creditable service.

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

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 February 1984, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 February 1987.

The application is dated 23 November 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

Prior to reaching this determination, the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__jns___  __lds___  __rks___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003083634	
SUFFIX		
RECON		
DATE BOARDED	20030925	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19840210	
DISCHARGE AUTHORITY	AR 635-200 C15	
DISCHARGE REASON	A46.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.