PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 May 2000                  
	DOCKET NUMBER:   AR1999033779

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to correct his military records by upgrading his discharge to honorable..

3.  In a sworn statement the applicant states that very soon after his arrival at his first permanent duty station his fellow soldiers began to tease him unmercifully  about being a homosexual.  A corporal harassed him by assigning him to extra duty.  

He writes “The officers called me ‘Louise’ but I didn’t mind this because they were courteous to me.  However, the harassment from the enlisted people was very hard on me.
  Eventually, I felt I couldn’t stand it any longer.  I went to my commander, explained to him that I was homosexual, and asked to be discharged.
At first I think they didn’t believe me.  Nothing happened for some time except that I was assigned KP duties and the harassment continued.”

He does not remember being given any papers to sign, being told he would be discharged, or being told to talk to an attorney.  A sergeant told him they were investigating his activities.  He is not sure of the investigating agency, perhaps it was CID.  The investigators never interrogated him.  Shortly before his discharge they told him they had been watching him, but had gotten nothing on him.  They complimented his piano playing and singing at the service club.  He did not see any papers about his discharge until they gave him his DD Form 214.  Then he learned he would get a undesirable discharge.  It was a terrible shock.  His discharge did not cause him employment problems but it did cause him embarrassment.  His family has a military tradition dating back to the American Revolution.  He had three brothers in the Army.  One became a lieutenant another a sergeant major and the third a sergeant.  He was proud to be a part of the family tradition and believes that he served honorably. 
  
4.  Counsel contends that the original application should not have been denied for failure to timely file because the applicant did not know he could apply until 1992.  The statement of his previous counsel is offered to support this contention.  Counsel also contends that the discharge should be upgraded based upon “current standards” because there has been a substantial enhancement of rights in the separation of homosexuals.  Counsel notes that there is no available evidence to show that the applicant committed any homosexual acts while in the service.

5.  The Memorandum of Consideration of the Board’s 7 September 1994 review of his request is incorporated herein by reference as if wholly set forth.

6.  Aside from a 26 February 1951 memorandum showing the applicant was advanced to private (E-2), the DD Form 214 is the only significant service record document available.  It shows he was separated in pay grade E-2.  The authenticating officer was an Assistant Adjutant General which indicates that the form was prepared at DA Headquarters. 

7.  Army Regulation 600-443, Separation of Homosexuals, was in effect at the time.  Section I of the regulation defines three classes of cases: Class I involved use force or abuse of power,  Class II applied to those cases where there was evidence that an individual had participated in at least one  homosexual act and Class II applied to those cases in which an individual exhibited, professed or admitted homosexual tendencies but there were no provable acts or offenses or no court-martial jurisdiction.  The regulation notes that “It is essential to distinguish between those who have uncontrollable tendencies and those who claim such for the purpose on avoiding military service.”  It required that “Evidence of existing psychological or other maladjustment resulting from such tendencies or other circumstances which render the individual inadaptable for military service, will be evaluated carefully in making a decision.”  Section II of the regulation provided the requirements for processing.  Trial by court-martial was mandatory in Class I cases.  Enlisted soldiers in Class II cases were to be advised that they could submit a statement accepting an undesirable discharge in lieu of trial by court-martial.  Court-martial action was to be initiated for those who refused.  Such requests and those cases in which the available evidence appear not to support a conviction were to be forwarded to DA Headquarters where a Personnel Board would: Accept the resignation, initiate general court-martial action or convert the case to Class III.  Soldiers in Class III were to be advised of their rights against self-incrimination and investigated to determine that they indeed fit the requirements of Class III.  Psychiatric examination was required, if possible.  If not possible, a medical officer was required to make a written report.  Enlisted personnel were given an opportunity to make a statement accepting an honorable or a general discharge as determined by a DA Board.  The cases were forwarded to DA Headquarters.  The DA Personnel Board could direct elimination proceeding, or direct separation and determine the characterization of service (honorable and general were authorized).  In such cases the specific reason for separation was to be “Convenience of the Government, AR 615-365 and AR 600-443.”

 8.  The Korean War started on 27 July 1950. The applicant was inducted on 
27 October 1950.

9.  Army Regulation 635-200, at chapter 3 outlines the criteria for characterization of service.  It states, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty.  A general discharge is separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

10.  Department of Defense Directive 1332.28 (discharge review board procedures and standards) provides that “current standards” means that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, to the extent that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would be obtained under the current policies or procedures

CONCLUSIONS:

1.  The applicant’s discharge was improper in that the information on his DD Form 214 is incongruent.  Both the characterization of “Undesirable” and the narrative reason of  “AR 615-365 and AR 600-443” could not be correct in the same instance.  In light of the fact that the form was apparently prepared at DA headquarters and that the applicant was separated in pay grade E-2 and not reduced to the lowest enlisted grade, the “Undesirable” characterization of his service is apparently an error. 

2.  The Board takes note of the applicant’s detailed statement and does not question that this is the way he remembers the incident.  However, his description of what happened differs entirely too much from regulatory requirements and the evidence that the case was processed at DA headquarters as to be given much credibility.  Furthermore, his statement itself seems inconsistent.  If the officers called him “Louise” why was he not believed when he admitted that he was homosexual.

3.  There is no reason to believe that he admitted his homosexuality in order to avoid wartime service.  However, it had that effect. 

4.  The applicant was inducted and to his credit he apparently tried to serve.  But, he did not perform significant service.  

5.  No one should be harassed, but there is no substantiating evidence that he was.  Moreover, the applicant does not report that he sought help from his chain of command, or requested a transfer or reassignment.  He simply reports that he decided he couldn’t take it and asked to be discharged.

6.  An honorable discharge connotes more that just acceptable performance and the absence of misconduct.  The applicant’s 7 months and 26 day of service during the Korean War, when others were fighting and dying is simply not meritorious enough to warrant an honorable discharge.  A general discharge was authorized and is appropriate.   

7.  The Board fully understands the “current standards” argument but DOD Directive 1332.28, which defines the term, is binding upon discharge review boards but not this Board (although this Board frequently acceptes it as instructional and applies it  in appropriate cases).  Furthermore, such argument is a matter of equity and the Board considers a general discharge equitable in this situation.

8.  Information and argument relative to the date of discovery and the failure to timely file are irrelevant since the case is being considered on the merits.   

9.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the undesirable discharge dated 22 June 1951 currently held by the individual concerned and by issuing him a general discharge of the same date.

2. That so much of the application as is in excess of the foregoing be denied.
   
BOARD VOTE:

_AAO___  ___VBC__  __LE___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A Omartian__
		        CHAIRPERSON

INDEX

CASE ID	AR1999033779	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19510622	
DISCHARGE AUTHORITY	AR 615-365 & AR 600-443	
DISCHARGE REASON	Convenience of the Government	
BOARD DECISION	MODIFY	
REVIEW AUTHORITY		
ISSUES         1.	A57.00	
2.	A94.22	
3.		
4.		
5.		
6.