MEMORANDUM OF CONSIDERATION

IN THE CASE OF:      

BOARD DATE:           12 April 2000                  
DOCKET NUMBER:   AR1999030757

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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: Reconsideration of his application to correct his records by upgrading his discharge.

APPLICANT STATES:  In effect that he defers to counsel.

COUNSEL STATES:  In effect, that the applicant’s discharge is too harsh in light of the circumstances surrounding the alleged homosexual act.  He notes that the applicant admits to having been under the influence of alcohol at the time of the incident.  Counsel avers that the applicant’s discharge was improper because of a 1968 change in the regulations liberalized the provisions for homosexual related discharges and should have been applied retroactively.  Counsel also contends that after 32 years it is inequitable to continue to penalize the applicant for a single isolated alcohol induced lapse of judgement.  Counsel requests that the Board consider the applicant’s post-service conduct and accomplishments and afford him an honorable discharge. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 20 April 1983 (COPY ATTACHED).

The applicant, through counsel, submits a request for consideration of the application of liberalized regulations and post-service conduct.  He submits copies of his marriage certificate, birth certificates for his children, a Certificate of Ordination in The Gospel Ministry, a college transcript, a Certificate of Foster Parent Training and a Certificate of Recognition for volunteer services at the Danville Correctional Center.

These documents and the request for retroactive application of the change in policy were not considered by the Board previously and constitute new evidence that requires Board review.

At different times since the applicant’s discharge in January 1962, the regulations and policies dealing with the issue of homosexuality have been addressed and revised on several occasions.  These include but are not limited to:

Army Regulation (AR) 635-209, of 1966, that set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Unsuitability included inaptitude, character and behavior disorders, defective attitude, chronic alcoholism, and homosexuality.  In the case of homosexual acts the character of discharge depended on the class of act and the soldier’s record discounting the 

homosexual act or admission.  For class I and II acts, an undesirable discharge was normally considered appropriate.

In 1968 AR 635-89, required the separation of individuals who voluntarily participated in homosexual acts.  Individuals involved in isolated episodes stemming solely from immaturity, curiosity or intoxication were excluded, but were to be eliminated under other regulations if appropriate.  Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated Class I.  Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated Class II.  Class III applied to individuals who had committed only pre-service homosexual acts.  An undesirable discharge was normally considered appropriate for Class II cases.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued.  A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service or if an individual had served for an extended period of time and the separation authority determined that such action was in the best interests of the service.  In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation.

AR 635-212, paragraph 6, of 1972, stated in pertinent part that an individual was subject to separation for unfitness due to sexual perversion for acts including but not limited to homosexual or lewd and lascivious acts.  When separation for unfitness was warranted under this provision an undesirable discharge was normally considered appropriate. 

In 1974 AR 635-200, chapter 13, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a) 1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

The current regulation of AR 635-200, 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 or acts, demonstrate a tendency to engage in homosexual conduct.  In part this regulation states that commission of a homosexual act while on active duty on a military installation normally warrants an under other than honorable conditions discharge.

The Manual for Courts-Martial states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

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.  As noted in the Manual for Courts-Martial voluntary intoxication is not an excuse for the commission on an offense.  That this standard of conduct is accepted not only by the military but also by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

2.  Counsel’s request that the Board apply standards that were not in effect at the time of the applicant’s discharge is without merit.  The standards for discharge of persons committing homosexual acts have been revised (as noted above) on several occasions since the applicant’s discharge.  To afford the applicant the right to pick and choose which regulation to apply is not appropriate.  There is no requirement in the law that requires that the Board apply any standard or regulation other than those that were in effect at the time of discharge.  Additionally, there is no convincing evidence that the circumstance on the applicant’s separation fits the requirements of any liberalized policy.  Further, to apply counsel’s line of argument the Board should also consider and apply standards currently in effect.  While the Board may apply current standards it normally does so only when there is a material enhancement of rights to the applicant.  Even the application of current standards would not result in an enhancement of rights to the applicant.

3.  Further and more importantly, to apply the alcohol defense under AR 635-89, the homosexual act must have been consensual in nature.  All evidence indicates that other person involved in the incident was not a voluntary participant.  This constituted a class I act.  However, as the applicant was not referred to trial by court-martial it would be downgraded to a class II act, for which an undesirable discharge was still appropriate.

4.  The Board notes the applicant’s post service activities, however, these activities are not so exceptionally meritorious as to outweigh the offence that resulted in his discharge, especially in light of the fact that his military record is devoid of significant service.
5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__rgh___  __bje____  __jps ___  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030757	
SUFFIX		
RECON	 	
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	A59.00	
3.	A93.19	
4.		
5.		
6.