`MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          23 September 2003
		DOCKET NUMBER:  AR2003083962

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann, 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 her general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In essence, she believes that under current Army policy she would not have been treated differently because of her homosexual lifestyle. She also states that her name was legally changed in 2000 and that she has provided a court order.  The court order was not provided with the application.

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

That on 1 June 1971, she enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 91A (Medical Corpsman).  She completed the training requirements and she was awarded MOS 91A.  On 3 October 1971, she was assigned to Fort Leavenworth, Kansas, with duties in her MOS.  

On 11 January 1972, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failing to obey a lawful order not to consume alcoholic beverages in the barracks on 10 January 1972.  Her punishment included 7 days of restriction and forfeiture of $25 pay per month for 1 month.

A CID (Criminal Investigation Division) Report of Investigation, dated 1 January 1973, indicates that, on 10 November 1972, at the Munson Hospital Dining Facility, Fort Leavenworth, a female specialist five confessed to a female civilian that she had been a homosexual prior to her entry into the military.  On 11 November 1972, the civilian female found a note affixed to the windshield of her vehicle indicating that the specialist five that made the confession had been injured and would be further injured if she continued to talk to her.  A CID investigation was initiated after the chief nurse at the hospital reported the incident.  The applicant was not the subject of the investigation, but it was during the course of this investigation that the applicant was questioned and admitted that during the period November 1971 - March 1972, while in the Woman’s Army Corps (WAC) Detachment Barracks at Fort Leavenworth, she and another female soldier engaged in numerous acts of oral sodomy, mutual masturbation and fondling.  

On 28 March 1973, the applicant’s unit commander notified her that he was initiating action to separate her prior to the expiration of her term of service 
under the provisions of chapter 13, Army Regulation 635-200, by reason of unfitness, based on her own admission of homosexual acts while on active duty at Fort Leavenworth.  She was informed of her rights.

On 26 April 1973, a medical examination determined that the applicant was physically qualified for separation.
On 1 May 1973, the applicant consulted with legal counsel and authenticated a statement with her signature in which she waived further representation by legal counsel and consideration of her case by a board of officers.  She acknowledged that she understood the ramifications of the separation action and she declined the opportunity to submit a statement in her own behalf. 

On 24 May 1973, the applicant's commander recommended that she be separated under the provision of chapter 13, Army Regulation 635-200.  The commander stated that the specific factual reason for his recommendation was that by the applicant’s own admission she had committed homosexual acts while on active duty at Fort Leavenworth.  The commander also stated that the applicant’s conduct ratings had been good and her efficiency ratings had been excellent.

On 25 May 1973, the intermediate commander recommended separation.  On 
29 May 1973, the approval authority waived rehabilitation, approved the recommendation and directed that the applicant be issued a GD under the provisions of chapter 13, Army Regulation 635-200, for homosexuality.  

On 31 May 1973, the applicant was separated under the provisions of chapter 13, Army Regulation 635-200, for homosexuality, with a GD.  She had completed 2 years of active military service. 

There is no evidence in the available records to indicate that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect (currently chapter 15), 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.  A GD is considered appropriate although an honorable or an undesirable discharge was authorized.

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.  The applicant’s discharge process was administratively correct and in conformance with the applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized her rights.

3.  The applicant was separated based on a sworn statement that she made concerning her engagement in homosexual conduct while in an active duty status and on government property.  Under current standards, she would also be separated.  There is no indication that her statement was made under coercion or duress and the applicant has provided no evidence to the contrary.

4.  The applicant’s personal conduct while on active duty does not warrant the upgrade of her discharge to that of a fully honorable discharge.

5.  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

__jlp___  __aao___  __phm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003083962	
SUFFIX		
RECON		
DATE BOARDED	20030923	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19730531	
DISCHARGE AUTHORITY	AR635-200 C13	
DISCHARGE REASON	A59.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5900	
2.		
3.		
4.		
5.		
6.