MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 February 2002                  
	DOCKET NUMBER:   AR2001064080

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 opinions, if any)

APPLICANT REQUESTS:  That her discharge document be corrected by changing or deleting the reason for separation, “Admission of homosexuality/bisexuality.”  She states that she feels that she is being treated unfairly and infers that no investigation would have occurred under current standards.  She believes that the “Don’t Ask Don’t Tell“ homosexual policy enacted by President Clinton should be applied retroactively.  The applicant dates the discovery of the alleged error or injustice as 1995, and believes the Board should consider her application because she was treated differently than soldiers are currently treated and because such a separation would now be illegal.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant entered active duty on 20 October 1981 at age 28 with a 12th grade education.  She completed basic combat training and advanced individual training with award of the military occupational specialty 15D (Lance Missile Crewmember).  

On 1 February 1984, the applicant was reported to the barracks CQ (Charge of Quarters) sergeant as having been observed to have been in bed with another female soldier.  The CQ reported the incident and Criminal Investigative Division (CID) was notified and initiated an investigation.  The applicant was notified of the CID investigation and was advised of her rights on 2 February 1984.  During the investigation the applicant admitted to and signed a statement to the effect that she had frequently engaged in sexual relations with another female over the preceding month.

On 23 February 1984, the applicant’s company commander notified her that he had initiated discharge proceedings for homosexuality based upon her reported activities and her admission of having participated in homosexual acts. 

On 1 March 1984, the applicant’s company commander submitted a recommendation that she be discharged for admission of homosexuality.  Based upon her job performance, military bearing, and attitude the company commander recommended she be “provided a General Discharge Certificate.”

The applicant acknowledged the 23 February 1984 notification on 5 March 1984, and waived her rights to counsel, to make a statement on her own behalf, to have a medical and/or mental evaluation, to personally appear or to have a board of officers consider her case, and to have copies of documents used in her separation presented to her.

Although the applicant waived her right to a medical and mental evaluation, as a result of a perceived suicidal gesture, she had undergone a psychiatric evaluation on 17 February 1984.  At this time, the applicant denied any suicidal feelings.  She stated that she preferred to be separated.  This evaluation “failed to elicit any emotional, psychogenic, or personality disorder.”  She was psychiatrically cleared for any administrative procedures. 

Her intermediate commander concurred with the recommendation for discharge but recommended that she be discharged with an under other than honorable conditions (UOTHC) characterization.

The discharge authority accepted the recommendation for discharge and determined that a general discharge would be most appropriate.  The applicant was discharged under honorable conditions on 29 March 1984, in accordance with Army Regulation 635-200, paragraph 15-3B, with a narrative reason for separation of admission of homosexuality/bisexuality.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At that time, chapter 15 of that regulation set forth the policies and procedures for discharge for homosexuality.  It 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, demonstrate a tendency to engage in homosexual conduct.  Paragraph 15-4 states that when the sole reason for separation is homosexuality, a discharge under other than honorable conditions discharge may be issued only if there is a finding that the soldier attempted, solicited or committed a homosexual act:

1.  By using force, coercion or intimidation;
2.  With a person under 16 years of age;
3.  With a subordinate under circumstances that violate customary military superior-subordinate relationships;
4.  Openly in public view;
5.  For compensation;

6.  Aboard a military vessel or aircraft; or
7.  In another location under military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or moral due to the close proximity of other soldiers.

In all other cases, the type of discharge will reflect the character of the soldier’s service, in accordance with chapter 3 of this regulation.

The “Don’t ask.  Don’t tell.” policy was instituted by President Clinton in July 1993.  It was not made retroactive.  Neither would it have applied to the applicant.  She was discovered in a location (a barracks) under military control where her conduct was likely to have an adverse impact on discipline, good order, or morale due to the close proximity of other soldiers; a situation for which an UOTHC discharge was authorized.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence that the applicant ever applied to the ADRB. 

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 March 1984, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 29 March 1987.

The application is dated 27 February 2001 and was received in St. Louis processing center on 15 October 2001.  The Board notes that if the 1995 date of discovery is accepted the 3-year limit has expired and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of her case had been considered and it had been concluded that there was no basis to recommend a 

correction of her record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit her application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__GPD__  __TAP__    __MHM_  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064080	
SUFFIX		
RECON	 	
DATE BOARDED	20020221 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.