MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           20 June 2000                   
	DOCKET NUMBER:   AR1999034347

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham 		Chairperson	
	Mr. James E. Anderholm 		Member	
	Mr. Ernest W. Lutz, 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, the applicant requests physical disability retirement in the rank and pay grade of Sergeant First Class, E-7, and barring that, his general discharge be upgraded to honorable.  

APPLICANT STATES:  That he received a general discharge while a member of the Virginia Army National Guard on an Active Guard/Reserve (AGR) tour on       1 October 1999.  He states that a soldier (who was a friend of his) filed a complaint with the police for having a homosexual act with him. The police report indicated that no crime had been committed, that there was no coercion or force involved, and that the complaint was unfounded.

He chose not to dispute the matter, because he had been recommended for a medical discharge.  He told the investigating officer (his supervisor) that he would agree to a reduction in grade, if he were allowed to be medically retired.  The investigating officer received the concurrence of that state headquarters to the agreement, and he (the applicant) accepted the nonjudicial punishment.

However, he was then informed that he was being discharged for homosexual conduct and the medical board proceedings at Walter Reed had been cancelled. Disgusted with the injustice of the matter, he signed a waiver to be discharged.   

He was informed that if his story would be known it would damage his unblemished record as a soldier.  He replied that their prejudice of persons infected with HIV should not guide their decision.  He said that he had over       16 years of active service and 3 years of Reserve service, and that there had been other cases of sexual affairs that were overlooked.

He loves the military and cannot believe that one alleged act of homosexual conduct can destroy a career.  He states that the regulation says that no action could be taken if the act was a one time incident.  His character of service could be honorable.  His condition requires frequent medication.  The discharge he received will not allow him to receive the best medical care.    

The applicant states that he was discharged without notice, and that he should have received separation pay based on 16 years of active federal service, not the pay which he received based on 12 years of service.

The applicant provides information showing the numerous awards that he has received and the numerous military and civilian training and education courses that he has completed.  He provides copies of NCO evaluation reports showing the value that his rating officials had of him.

He also provides a copy of an article published in The Washington Post that purports to show the kind of discrimination and unfair treatment of black soldiers in the Virginia Army National Guard. 
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army Reserve delayed entry program (DEP) on       3 July 1980, and enlisted in the Regular Army on 3 June 1981 serving until       29 May 1985.  Thereafter, he was assigned to the Army Reserve Control Group (Reinforcement), and served for 25 months in an Army Reserve troop program unit (TPU).  On 1 October 1987 he enlisted in the Army National Guard and was ordered to active duty in an Active Guard/Reserve (AGR) status.  He was promoted to Sergeant First Class in 1995, and in November 1998 was assigned as a recruiter with the state area command recruiting and retention detachment.  He remained on active duty until his discharge in 1999.

A Newport News, Virginia police report indicates that on 16 January 1999 a male individual reported that the applicant, then that person’s National Guard recruiter, engaged in an homosexual act with him.  That report indicates that no crime had been committed, and that the individual was not threatened or forced and willingly engaged in the sex act.  The police report stated, “This report should have never been taken.  This case is cleared unf (unfounded).” 

A report of inquiry into alleged recruiter impropriety on the part of the applicant found that he had committed a violation of the UCMJ, article 134, by wrongfully committing an indecent act with a fellow soldier, that his conduct was prejudicial to the good order and discipline of the armed forces and was of a nature to bring discredit upon the armed forces, and that conduct severely impacted on his ability to recruit and retain members of the military service.  He breached the integrity of the military system of rank and command, and violated normally acceptable standards of conduct and relations between senior NCOs and enlisted ranks.  He willfully disobeyed a lawful command not to have any contact with recruiting applicants and not to go to or have any contact with high schools or colleges and not to answer his duty telephone.  He appeared at the Woodrow Wilson High School in direct violation of orders, and presented the impression of an attempt to impede an official investigation and an attempt to influence the testimony of a witness in the investigation [the soldier previously mentioned].  The investigating officer recommended that the applicant continue in his suspended status from all recruiting or retention activities, that he receive nonjudicial punishment, and that he be processed for discharge in accordance with Army Regulation 135-178, chapter 10, paragraph 10-2 through 10-5.

On 15 March 1999 the Virginia Army National Guard Judge Advocate stated that he had reviewed the report and it was legally sufficient.

A medical evaluation board (MEB) indicates that the applicant had a history of HIV infection first diagnosed in 1989.  He was evaluated at Walter Reed Army Medical Center with no symptoms but had a significant increase in CD4 count.  He was also found to have evidence of oral hairy leukoplakia.  He returned again in 1997 and the decision was made to start him on medication and therapy.  He tolerated the therapy well; however, CD4 count was noted to rise modestly and viral load was also noted to creep upwards.  Subsequent evaluation showed CD4 count climbing, and most recently the applicant reported increasing difficulty maintaining his schedule on his therapy.  The applicant had evidence of molluscum contagiosum scattered through various parts of his face, chest, and back.  His condition was diagnosed as HIV infection, first diagnosed in 1989, complicated by decline in CD4 count to less than 200, with periodic oral hairy leukoplakia; and molluscum contagiosum of skin secondary to immune system decline, associated with HIV infection.  The MEB report stated that while he was certainly able to work, it was becoming increasingly obvious that the stress associated with recruiting duties was making his compliance with therapy more difficult.  His long term prognosis was guarded.  It was recommended that he be referred to the physical evaluation board (PEB).  He did not meet the medical standards for retention in the Army.  On 25 March 1999, the applicant stated that he did not desire to continue on active duty and that he agreed with the board’s findings and recommendation.

On 23 June 1999 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to obey a lawful order not to have any contact with recruiting applicants, and not to go or have any contact with high schools or colleges; for attempting to impede an official investigation and unlawfully influence the testimony of a witness in an official investigation; and for sodomy with a fellow soldier, a private first class with the Virginia Army National Guard.  The applicant indicated that he did not demand trial by court-martial, and elected not to present matters in defense, mitigation, and/or extenuation.  He was reduced to Staff Sergeant, pay grade E-6.  He accepted, and elected not to appeal, the punishment. 

The applicant was released from his AGR status on 1 October 1999 in pay   grade E-6 under the provisions of Army Regulation 635-200 for a homosexual act.  He received a general discharge.  He had almost 16 years of active service and 1 year, 1 month, and 18 days of inactive service.   He was discharged from the Army National Guard and as a Reserve of the Army with half separation pay. There is no record of the administrative proceedings that led to his discharge.  

The pay voucher which the applicant submits with his request shows that his pay date was 3 July 1980, that he had 19 years of service, and that he received readjustment pay of $15,642.72. 

Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Army National Guard of the United States.  Chapter 10 establishes policy and sets forth the criteria and procedures for separation for reason of homosexuality.  Paragraph 10-2 states in pertinent part that homosexuality is incompatible with military service, that the presence in the military of persons who engage in homosexual conduct, seriously impairs the accomplishment of the military mission.  The presence of such soldiers adversely affects the ability of the service to maintain discipline, good order, and morale; foster mutual trust and confidence among service members; ensure the integrity of the system of rank and command; recruit and retain members of military service; and maintain the public acceptability of military service.  

A soldier will be separated if he has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, except under certain circumstances – conduct is a departure from the soldier’s usual behavior; conduct is unlikely to recur; because the act occurred solely as a result of immaturity, intoxication, coercion; conduct was not accomplished by use of force, coercion, or intimidation; the soldier’s continued presence in the service is consistent with the interest of proper discipline, good order, and morale; and the soldier does not desire to engage in or intend to engage in homosexual acts.

When the basis for separation is homosexuality, discharge under other than honorable conditions may be issued if there is a finding that the soldier attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation; or with a subordinate in circumstances that violate customary military superior-subordinate relationships.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, states in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Army Regulation 635-40 also states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  The commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation. A copy of the decision, signed by the general court-martial convening authority must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the general court-martial convening authority finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions; or other circumstances warrant disability processing instead of alternate administrative separation. 

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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The applicant has provided no evidence otherwise.  The applicant himself has stated that he signed a waiver to be discharged.  The character of the discharge is commensurate with his overall record.  The evidence shows that the applicant had a homosexual relationship with a fellow soldier, a subordinate, and that he willfully disobeyed orders.  He could have received an under other than honorable conditions discharge.  While the Board has taken cognizance of the applicant's military record, to include his numerous awards and the education and training courses that he completed, none of these factors, either individually or in sum, warrant upgrading his discharge to honorable.

2.  There is no evidence, nor has the applicant provided any, to show that there was an agreement that he would be medically retired if he agreed to accept nonjudicial punishment, reducing him in rank.  The applicant was informed of his right to demand trial by court-martial, and stated that he did not demand that right.  He stated that he had been afforded the opportunity to consult with counsel.  He accepted the nonjudicial punishment, to be reduced in rank, and elected not to appeal.  Contrary to his contention, the regulation does provide for administrative action based on a one-time homosexual incident, for various reasons, and in this case, because of a relationship between a superior and a subordinate.  

3.  A medical evaluation board did determine that he did not meet the medical standards for retention in the Army, and recommended that he be referred to a physical evaluation board.  However, those physical disability proceedings were apparently discontinued because of his misconduct.  Therefore, there is no basis for physical disability retirement or separation.
 
4.  There is no evidence to show that the amount of separation pay that the applicant received was based on 12 years of service or otherwise improperly computed.  The presumption of regularity is assumed.     

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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 that requirement.

7.  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

___jea___  ___ewl__  ___vbc__  DENY APPLICATION

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

INDEX

CASE ID	AR1999034347	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000620	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.