MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 June 2003                  
	DOCKET NUMBER:    AR2003085449

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Eloise C. Prendergast		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was not aware that he could get a review of his discharge until now.  

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

On 2 December 1960, he entered active duty in the Army.  He completed training and was awarded a specialty of 120 (Pioneer Engineer).  His record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private/E-2.

The applicant’s record does contain an extensive disciplinary history.  On 
31 March 1961, he was found guilty of being absent without leave (AWOL), from 5 through 15 March 1961, by a special court-martial.  On 15 May 1961, he was found guilty of being AWOL, from 7 through 9 May 1961, by a summary 
court-martial.  Finally, on 12 January 1962, he was found guilty of AWOL, from 
2 September through 22 December 1961, by a special court-martial.  

While assigned to the Special Processing Detachment, Fort Riley, Kansas, the applicant was notified by his commander that separation action was being initiated to eliminate him from the Army under the provisions of paragraph 17 (Class II), Army Regulation 635-89, by reason of homosexuality.  The reason cited for the action was the applicant’s self admission that he was a homosexual and that he had twice engaged in homosexual acts during his military service while assigned to the Post Stockade, Fort Riley, Kansas.  The applicant consulted legal counsel, and after being advised of the basis for the contemplated separation action, he elected to waive consideration of his case by a board of officers, and he chose not to submit a statement in his own behalf.

The appropriate separation authority approved the applicant’s separation under the provisions of paragraph 17 (Class II), Army Regulation 635-89, and directed that the applicant receive an undesirable discharge (UD).  On 12 March 1962, the applicant was discharged accordingly.  At the time of his separation, he had completed a total of 8 months and 18 days of creditable active military service, and he had accrued 204 days of time lost due to AWOL and confinement.  

On 5 July 1972, the Army Discharge Review Board determined that the applicant’s UD was proper and equitable and it denied his request for an upgrade of his discharge. 

Army Regulation 635-89, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexual and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation identified the specific classes of homosexuality and definitions that would be processed for separation under its provisions.  In pertinent part, the regulation defined Class II cases as those in which personnel engaged in one or more homosexual acts during military service.  No distinction is made in the handling of such cases based upon the active or passive participation of individuals.  Enlisted members whose cases were processed as a Class II category normally were provided an UD, except an honorable or general discharge could be granted if the individual was awarded a personal decoration, or if warranted based on the particular circumstances in a given case.

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 notes the applicant’s contention and desires that his characterization of service be upgraded to an HD.  However, the Board finds an insufficient evidentiary basis to grant the requested relief.  

2.  The evidence of record confirms that by his own admission, the applicant engaged in homosexual acts during his military service.  As a result, he was properly processed for separation in accordance with the applicable regulation in effect at the time.  

3.  The record further shows that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the Board concludes that the applicant’s discharge is appropriate and accurately reflects the overall quality of his service.

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:

_EP_  __JI__  __RO_____  GRANT

________  ________  ___  GRANT FORMAL HEARING

________  ________  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085449	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	19620312	
DISCHARGE AUTHORITY	AR635-89 .  .  .  .  .  	
DISCHARGE REASON	Class II Homosexual	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  598	144.5700	
2.		
3.		
4.		
5.		
6.