RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 March 2007 DOCKET NUMBER: AR20060011771 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that her general, under honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, that she was advised that her discharge would be automatically upgraded after six months. She also states that she received her Master's Degree in 2004 and, because of her discharge, has been unable to secure employment. 3. The applicant did not provide additional documentary evidence in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 12 March 1986, the date of her discharge from the Army. The application submitted in this case is dated 9 August 2006. 2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. On 3 June 1985, the applicant enlisted in the Regular Army for a period of four years. She was trained in, awarded, and served in military occupational specialty (MOS) 31C (Single Channel Radio Operator). 4. On 28 January 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent from her unit for two days. Her punishment consisted of 15 days of restriction and extra duty. 5. On 28 January 1986, the applicant voluntarily submitted a statement admitting that she was a homosexual and that she felt under constant pressure due to her lifestyle. She indicated that she was gone for two days trying to "get her head straightened out." She was involved in a relationship with a civilian and was not involved in any homosexual activity on post. 6. On 3 March 1986, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 15 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of homosexual admission. The unit commander advised the applicant that the least favorable characterization of service she could receive was a general, under honorable conditions. 7. On 3 March 1986, the applicant consulted with legal counsel, waived consideration of her case by a board of officers, and did not submit a statement in her own behalf. 8. On 6 March 1986, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge. 9. On 12 March 1986, the applicant was discharged by reason of homosexual admission after completing 9 months and 10 days of active military service. 10. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 11. Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel. Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct. Army regulation states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, and if there is a finding that during the current term of service the soldier attempted, solicited, or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate in circumstances that violate customary military superior subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other soldiers of the Armed Forces. In all other cases, the type of discharge will reflect the character of the Soldier’s overall record of service. 12. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 13. Army Regulation 635-200, paragraph 3-7a, further provides that when a Soldier is discharged before his or her expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply: a. where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offenses; b. a Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Article 15. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge; and c. an honorable discharge may be furnished when disqualifying entries to the Soldier's military record are outweighed by subsequent and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. DISCUSSION AND CONCLUSIONS: 1. Evidence shows that the applicant was properly discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would tend to jeopardize her rights. 2. The applicant received NJP on one occasion for being absent from her unit for two days. She indicated that she was absent because she was trying to get her head straight; she then rendered a voluntary statement admitting to homosexuality. 3. Discharge solely for admission of homosexuality does not prohibit the granting of an honorable discharge. In this type of case, the characterization of discharge is determined by an individual's overall record of service. 4. The honorable characterization is appropriate when the quality of a Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. A Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Article 15. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. Under the above guidance, the applicant's infraction of discipline could still entitle her to an honorable discharge. 5. The applicant states she received her Master's Degree in 2004 and believes her characterization of service has interfered in her ability to find employment. 6. In view of the regulatory guidance above, it would be in the interests of justice to change her characterization of service to honorable. The reason for discharge is fully supported by the official record and there is no basis upon which to change it. 7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 March 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 March 1989.  The applicant did not file within the 3-year statute of limitations; however, based on the available (evidence or argument), it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: __wdp___ __pms___ __jlp___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that she was separated with an honorable discharge on 12 March 1986 by reason of homosexual admission. William D. Powers ______________________ CHAIRPERSON INDEX CASE ID AR20060011771 SUFFIX RECON DATE BOARDED 20070313 TYPE OF DISCHARGE (GD) DATE OF DISCHARGE 19860312 DISCHARGE AUTHORITY AR 635-200, Chap 15 DISCHARGE REASON BOARD DECISION (GRANT) REVIEW AUTHORITY ISSUES 1. 144.5900 2. 3. 4. 5. 6.