MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           3 August 2000                   
	DOCKET NUMBER:   AR1999034232

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Edwin S. Castle 		Member	
	Mr. Orville W. Troesch 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:  In effect, that his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).

APPLICANT STATES:  That he served his country well and received medals and decorations.  He adds that he had to defend himself against a racial attack and had no choice except get out of the Army or face court-martial.

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

He enlisted in the Regular Army for 3 years on 28 March 1951.  Upon completion of all required military training, he was sent to Korea where he fought in the Korean War and was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Korean Service Medal with 2 bronze service stars, and the United Nations Service Medal.  He was honorably discharged on 6 March 1954 with 2 years, 11 months, and 9 days of creditable service and no lost time.

The applicant reenlisted in the RA for 3 years on 30 March 1954.  He later immediately reenlisted for 6 years on 23 December 1955.  In 1957, he was assigned to the 17th Infantry Regiment in Korea.  At midnight on 14 June 1957, the applicant was observed engaged in an act of sodomy with another soldier in the unit dayroom.  The duty officer and several unit personnel witnessed the act. He was apprehended and court-martial charges were preferred against him.  An investigation was conducted under Article 32, Uniform Code of Military Justice which recommended proceeding with the charges against him.  The applicant then requested separation under the provisions of Army Regulation 635-89, in lieu of court-martial.

The applicant's request for discharge was approved and he was separated with a UD on 9 September 1957.  He had 3 years, 5 months, and 10 days of service on the immediate period of service and 6 years, 4 months, and 19 days of total service.

Army Regulation 635-89, then in effect, set forth the authority, criteria, and procedures for the disposition of military personnel who were determined to be homosexuals.  The regulation permitted soldiers to request discharge in lieu of facing trial by court-martial.  If the soldier's request was accepted, a UD would be issued unless extraordinary circumstances warranted a discharge under honorable conditions.

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 committed a homosexual act with another soldier.  Unit personnel and the duty officer observed this act.  Court-martial charges were preferred against him and he requested separation under the provisions of Army Regulation 635-89, Homosexuality.

3.  There is no indication that the applicant was the victim of a racial attack.  He requested discharge to avoid a punitive discharge which may have resulted from a trial by court-martial.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns ___  __esc___  __owt____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034232	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19570909	
DISCHARGE AUTHORITY	AR 635-89	
DISCHARGE REASON	A57.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.