MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 August 2003                  
	DOCKET NUMBER:   AR2002081670

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern		Member	
	Ms. Mae M. Bullock		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 his discharge be upgraded.

APPLICANT STATES:  In effect, that he was told that he could apply for an upgrade after 6 months.  He further states that he was not guilty of the offenses for which he was charged.  The applicant requests to personally appear before the Board.

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

The applicant entered active duty on 17 April 1979 with immediate reenlistments on 5 February 1981 and 31 December 1984.  At the time of the offences he was a staff sergeant (E-6) serving in Germany.

During an investigation into the death of a soldier, the Criminal Investigation Division (CID) of the Criminal Investigation Command (CIC) obtained information of alleged homosexual acts on the part of three soldiers.  

As a result of this investigation the applicant’s command recommended that he be permanently disqualified from the Personnel Reliability Program based on the alleged homosexual acts.  

On 16 February 1989 the applicant submitted a letter rebutting the disqualification.

On 3 March 1989 CIC finalized its investigation of the three other soldiers and found that there was sufficient evidence to proceed with charges of sodomy, false swearing and indecent acts with another.  During this investigation the applicant was also implicated in having had homosexual relations with the other soldiers under investigation.  In a sworn statement to CID, the applicant denied any involvement in homosexual activities.

On 20 March 1989 the applicant’s unit commander notified him that he was recommending that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15, for homosexual acts.  The unit commander recommended a general discharge.

The applicant acknowledged receipt to this notice and submitted a written rebuttal of the charges on 22 March 1989.  In this statement he continued to aver that he was not homosexual nor had he committed any homosexual act.

After consulting with military counsel, the applicant submitted a request to have his case heard by a board of officers, requesting to make a personal appearance and to be represented by counsel.

An Administrative Separation Board was convened on 12 May 1989 at Aschaffenburg, West Germany.  It heard testimony on both 12 May 1989 and, due to non-availability of personnel, again on 20 May 1989.

During the hearing, sworn personal testimony was taken from the other soldiers implicated in the CID investigation.  These soldiers stated that they had seen and/or participated in homosexual acts with the applicant.  Several additional witnesses stated that they could not and did not believe that the applicant was a homosexual.  

During the board several of the applicant’s superiors described the applicant as a dedicated and hard working noncommissioned officer (NCO) who could be counted on to get the job done.  He took the time and effort to work with junior soldiers and was a dedicated leader.  He was described as a truly professional and outstanding performer. 

The administrative board found that there was sufficient evidence in the form of personal testimony to indicate that the applicant had engaged in, attempted to engage in, or solicited another to engage in a homosexual act.  They concluded that such conduct was not a departure form the soldier’s usual and customary behavior; was not unlikely to recur; was not accomplished by use of force or coercion and that the continued presence of the applicant in the service was not consistent with the interest of proper discipline, good order and morale.  They recommended that the applicant be discharged because of homosexual acts with a general under honorable condition discharge.

The separation authority approved the board’s recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15 for homosexuality and be given a General Discharge Certificate.

The applicant was discharged on 23 June 1989.  He had 11 years, 2 months, and 7 days of creditable service.  His awards and decorations are listed as the Army Commendation Medal, the Army Achievement Medal with three oak leaf clusters, the Army Service Ribbon, the NCO Professional Development Ribbon with a numeral 2, the Overseas Services Ribbon with numeral 2, the Expert Badge with Rifle Bar, and the Marksman Badge with Grenade Bar.

The Army Discharge Review Board reviewed the applicant’s case and denied him any relief on 15 November 2002.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The 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 and the nature of the offenses.

2.  The applicant has provided no evidence or arguments that show that the testimony offered during his administrative board was false or that any of the members offering that testimony had anything to gain by implicating him in their activities.

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 this 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

__AAO__  __TBR___  __MMB_  DENY APPLICATION

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

INDEX

CASE ID	AR2002081670	
SUFFIX		
RECON		
DATE BOARDED	20030807	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	  110   -  UPGRADE CPT 15	
2.		
3.		
4.		
5.		
6.