MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:    

		BOARD DATE:           MARCH 11, 2004                   
		DOCKET NUMBER:  AR2003091390

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone . 		Chairperson	
	Mr. Patrick H. McGann		Member	
	Ms. Mae M. Bullock		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 undesirable discharge be upgraded to at least a general discharge.

APPLICANT STATES:  In effect, that he has recently looked up the authority and reason for his discharge and has discovered that he was unjustly discharged because of homosexuality; however, he is a heterosexual male with normal tendencies and he was never involved in any physical relations or homosexual episodes with anyone.  He further states that he did not identify himself as being homosexual nor was he ever accused of such tendencies.  He also states that while he was described as having an effeminate nature, an Army psychiatrist determined that he did not show any homosexual tendencies.  He continues by stating that he never received any disciplinary action for any such conduct and he was married in 1961 and has one son.  He now realizes that he was deprived of the opportunity to complete his obligations and to perform as an Army medic.  

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

He was born on 3 March 1938 and enlisted in San Antonio, Texas, on 30 July 1960,for a period of 3 years and training as a medical corpsman.  He completed his basic combat training at Fort Hood, Texas, and was transferred to Fort Sam Houston, Texas, to undergo his advanced individual training (AIT).  He completed his AIT and remained at Fort Sam Houston for his permanent duty assignment.

On 17 April 1961, at the request of the commander, the applicant underwent a neuropsychiatric evaluation.  The examining psychiatrist explained that the applicant informed him that he had began engaging in homosexual activities as a child and that he had not had a relationship since entering into the service.  He further admitted that he had never had normal relations with a woman and he felt the urge to continue homosexual activities and desired to be discharged from the Army.  The psychiatrist opined that the applicant was mentally responsible and diagnosed him as a sexual Deviate – overt homosexual.  He was convinced that the applicant was a confirmed homosexual and recommended that he be expeditiously separated from the service under the provisions of Army Regulation 635-89 for homosexuality.

On 11 May 1961, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-89, as a Class II homosexual.  He cited as the basis for his recommendation that the applicant's retention in the service presented a significant morale problem for the unit because of his admitted and obvious condition.  His effeminate temperament and actions had resulted in minor disciplinary offenses such as failure to appear for shots for fear of the needle, which further made him stand out.  Additionally, his attitude towards the service was poor.

After consulting with counsel, the applicant waived all of his rights, declined to submit a statement in his own behalf and acknowledged that he understood that he might be discharged under other than honorable conditions and the effects thereof that might result in civilian life.

On 8 May 1961, the applicant made a sworn statement to a criminal investigator who was conducting an investigation into the applicant's homosexuality.  He stated, in effect, that he had his first homosexual experience at about the age of 10 and had continued to frequently engage in homosexual acts in which he was both the active and passive participant.  He also stated that he was well known among homosexuals in San Antonio and he continued to associate with homosexuals and to engage in homosexual acts with them.  However, to his knowledge he had not engaged in such acts with military personnel.

On 11 May 1961, he again gave a sworn statement to a criminal investigator in which he asserted that he had given a statement to the investigator in February to protect himself.  He had engaged in homosexual relationships during the time he was enlisted and up until the present, but not with anyone in military service.  He also admitted that he had been engaged in homosexual activities since about the age of 10 and that he had his first sexual relations with a woman when he was 20 years of age and he had had relationships with both male and females since that time.

The appropriate authority (a major general) approved the request for discharge on 17 May 1961 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 2 June 1961, under the provisions of Army Regulation 635-89, as a Class II Homosexual.  He had served 10 months and 3 days of total active service.

There is no evidence that the applicant ever applied to the Army Discharge Review Board within that board's 15-year statute of limitations. 

Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of homosexuals.  It stated, in pertinent part, that personnel would be discharged under other than honorable conditions if the case falls within Class II. Class II consisted of those cases in which homosexual personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during active military service. 

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 administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

3.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case.

4.  The Board has noted the applicant's contentions and finds that they are without merit.  The evidence of record clearly shows that the applicant admitted to being a homosexual no less than three times and signed sworn statements to that effect at least twice.  There is no doubt, based on the available evidence, that at the time he knew that he was being separated for homosexuality.

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

jns    ____  phm____  mmb_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003091390	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040311	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1961/06/02	
DISCHARGE AUTHORITY	AR635-89 .  .  .  .  .  	
DISCHARGE REASON	HOMO	
BOARD DECISION	(DENY.)	
REVIEW AUTHORITY		
ISSUES         1.144.4600	563/A46.00	
2.		
3.		
4.		
5.		
6.