MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 JUNE 2002
	DOCKET NUMBER:   AR2001063635

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub 		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 the authority and reason for her 1992 separation from active duty be changed to permit her to return to military service.

APPLICANT STATES:  “At no time did I admit to engaging in homosexual acts as is stated on my separation papers nor was there a credible witness to say that I engaged in homosexual acts.”  She states that her first “personnel action flag” ended with a favorable outcome and that when the new commander arrived she was “flagged once again” based on the same information.  She indicated that counsel advised her that it would not be in her best interest “to challenge the separation.”  The applicant maintains that she was not aware until recently that she “was not eligible for reenlistment” and that this was “not something which was explained” to her at the time of her separation.  She states that given the “circumstances” surrounding her separation, and the “lack of a credible witness or evidence,” her separation should be changed so that she can “return to the Army Nurse Corps in whatever capacity is needed to serve….”  She submits no evidence in support of her request.

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

She served an initial period of active duty between November 1983 and August 1986 and was discharged for the purpose of enrolling in a Reserve Officer Training Corps (ROTC) program.

She was commissioned as a second lieutenant on 31 July 1989 and returned to active duty as a nurse on 15 July 1990.  Following completion of her officer basic course, she was assigned to William Beaumont Army Medical Center at Fort Bliss, Texas, in October 1990, as a clinical staff nurse.

On 31 August 1992, while still assigned at Fort Bliss, the applicant submitted a request for voluntary resignation.  She noted in her request that she had been informed that she was “being considered for elimination” and that she was volunteering to “tender [her] resignation from the Army…in lieu of further elimination proceedings.”  She stated in her request that she had “been fully advised and counseled in this matter by…a member of the Judge Advocate General’s Corps” and that she “fully” understood the “implications of this voluntary action.”  She elected to waive her right to appear before a board of officers and “to submit matters in explanation, rebuttal, or defense concerning the allegations in my case.”  She also acknowledged in her request that she had been “notified, in writing” to “show cause for retention.”  Documents associated with the elimination proceedings, or the basis for her notification to show cause for retention, were not in records available to the Board.

Her voluntary request to tender her resignation was approved in a Department of the Army message dated 9 November 1992.  The message directed that the applicant would be issued an Honorable Discharge Certificate and that the message and Chapter 4, Army Regulation 635-120, would be cited as the authority for separation.  The message also directed that her DD Form 214 (Certificate of Release or Discharge from Active Duty) would reflect an SPD (separation program designator) code of “BRA.”

The applicant was discharged on 1 December 1992.  Item 25 (separation authority) reflects the message and regulation noted above and item 28 (narrative reason for separation) reflects “engaged in homosexual acts.”

Army Regulation 635-120, Chapter 4, then in effect, stated that an officer who had been recommended for elimination from the service by a general court-martial convening authority, or who had been selected by a Department of the Army Selection Board for elimination, or to show cause why he or she should not be eliminated, could tender a resignation in lieu of elimination action.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the 
DD Form 214.  Item number 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority.

Army Regulation 635-5-1, then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  It indicated that "homosexual acts” is the appropriate narrative reason for discharge when the authority is "AR 635-120, Chap 4,” and the SPD code was “BRA” when the separation was based on a resignation or voluntary discharge in lieu of elimination proceedings.

The applicant's petition to the Army Discharge Review Board to change the reason and authority for her discharge was denied in May 2002.

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.  The Board notes that the evidence confirms that the applicant voluntarily tendered her resignation in lieu of an elimination action.  While records available to the Board do not contain any documents associated with that elimination action, it appears, based on information, which is available, that the elimination action involved homosexual acts by the applicant.  In the absence of evidence to the contrary, the Board presumes that the basis for the separation action was sufficient for the applicant to choose to voluntarily resign rather than appeal the elimination action or to present her case before a board of officers.  The applicant has presented no evidence to dispute this presumption.
2.  Her contention that she was unaware that her 1992 separation action would prevent her from returning to a military status is not evidence that the reason and authority for her separation was in error, nor is it a basis for the Board to now grant relief.

3.  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.

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

__KAK__  __MHM __  _ALR___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063635	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020618	
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.	110.00	
2.		
3.		
4.		
5.		
6.