MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 May 2003
	DOCKET NUMBER:   AR2002082246

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Larry C. Bergquist		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 undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that he was unjustly discharged without being asked anything or told anything about why he was being discharged.  He goes on to state that he was simply locked up and then discharged without explanation.  He further states that he believes that the Army owes him compensation in some way for the damage it has done to him over the past 40 years.

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

He enlisted in Detroit, Michigan, on 21 August 1961 for a period of 3 years and training as a medical supply specialist.  He successfully completed his training and was transferred to Fort Bragg, North Carolina on 6 February 1962.

The applicant underwent a psychiatric examination on 17 April 1962 and the examining psychiatrist opined that the applicant was free of any mental defect, was able to distinguish right from wrong and to adhere to the right.  He also indicated that a criminal investigation was conducted by the Criminal Investigation Division (CID) and that the applicant had admitted to engaging in homosexual acts with another soldier on three or four occasions, as a passive partner.

On 6 April 1962, the applicant signed a statement in which he admitted to participating in homosexual acts on three occasions with another soldier, whom he named.

The other soldier was questioned and admitted that he had been engaging in homosexual acts since the age of 14.  He underwent a lie detector tests and his statements were confirmed. 

On 20 April 1962, his commander initiated action to separate him from the service under the provisions of Army Regulation 635-89, for engaging in homosexual activities (Sodomy).  

The applicant acknowledged by his signature that he had been counseled and advised of the basis for the contemplated separation and waived his rights to counsel and appearance before a board of officers.  He also elected not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 21 May 1962, under the provisions of Army Regulation 635-89 due to Class II Homosexual acts.  He had served 9 months and one day of total active service and was issued a Reentry Code of RE-4.

He applied to the Army Discharge Review Board (ADRB) on 14 June 1962 contending that his discharge was hindering his ability to obtain employment.  On 11 October 1962, the ADRB denied his appeal.

Army Regulation 635-89, in effect at the time, set forth the basis authority for the separation of homosexuals.  It stated, in pertinent part, that personnel would be discharged under other than honorable conditions if the case falls within Class II. Class II consisted of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service. 

Army Regulation 635-200, chapter 15, currently in effect, provides, in pertinent part, that when the sole basis for separation is homosexuality, the type of discharge will reflect the character of the soldier’s service.  A discharge under other than honorable conditions may be issued only if there is a finding that during the current term of service the soldier attempted, solicited or committed a homosexual act in a location subject to military control.  

The Manual for Courts-Martial provides the maximum sentences that may be imposed if convicted at trial by court-martial.  It provides, in pertinent part, that the maximum sentence that may be imposed for a conviction by a court-martial, for a single violation of Article 125 (Sodomy), is a dishonorable discharge, confinement at hard labor for 5 years, and a total forfeiture of all pay and allowances.

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.  It appears that the applicant’s administrative separation was administratively correct and in conformance with applicable regulations, with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The Board has noted the applicant’s contentions that he did not know why he was being discharged and finds them to be without merit.  He clearly admitted that he participated in at least three acts of sodomy and he named the other soldier, who was also questioned.  Furthermore, he acknowledged by his signature that he understood why the commander was recommending his discharge.  The evidence of record leaves no doubt as to the applicant’s knowledge of why he was being discharged.

4.  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.

5.  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

__lem___  ___fe ___  ___lb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002082246	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/05/06	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1962/05/21	
DISCHARGE AUTHORITY	AR635-89  	
DISCHARGE REASON	CLASS II HOMO	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  563	144.4600/A46.00	
2.		
3.		
4.		
5.		
6.