RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2008 DOCKET NUMBER: AR20070014011 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. Ms. Catherine C. Mitrano Director Mr. Rial D. Coleman Analyst The following members, a quorum, were present: Mr. John T. Meixell Chairperson Ms. LaVerne M. Douglas Member Ms. Jeanette R. McCants Member 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 his discharge be upgraded to honorable. 2. The applicant states, in effect, that if he was being discharged under the current Army Standards, he would not receive the type of discharge that he received. He continues that he had a medical condition which required surgery followed by a long recovery period. The applicant also states that his condition worsened while he was on convalescent leave and he was hospitalized at a local hospital prior to being transferred back to the military hospital at his duty location. The applicant concludes that his superior suggested that he admit his homosexuality in order to be released from the Army. 3. The applicant provides a self-authored statement and two character references as additional documentary evidence in support of this application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's record shows that he was inducted into the Army of the United States at the age of 23 on 13 December 1966 for a period of twenty-four months. While attending initial entry training at Fort Dix, New Jersey, the applicant became ill and was hospitalized. 3. DA Form 8-275-2 (Clinical Record Cover Sheet) shows the applicant was hospitalized on 19 January 1967 and underwent a surgical procedure on 23 January 1967. This form also shows the applicant was placed on convalescent leave for the period 1 February 1967 through 14 February 1967. 4. Standard Form 600 (Chronological Record of Medical Care) shows the applicant underwent another surgical procedure on 14 February 1967 and was discharged from the hospital on 17 February 1967. 5. DA Form 19-24 (Statement), dated 15 May 1967, shows the applicant was informed by a Criminal Investigator of the United States Army that he was under investigation based upon suspicion he had committed the criminal offense of sodomy. The form also shows that after being advised of his rights, the applicant knowingly and willingly elected not to have counsel present during his interview. In his sworn statement, the applicant essentially stated that he became involved in homosexual acts when he was 14 years old. The applicant stated he had been involved in homosexual relationships with six different men. He informed the investigator that his most recent homosexual act had occurred between 28 April 1967 and 12 May 1967, while he was on convalescent leave. When asked if he considered himself to be a true homosexual, the applicant replied "Yes." When asked if he had anything to add to his statement, the applicant replied "No." The form was signed by the applicant and the investigator, and witnessed by another investigator. 6. On 19 May 1967, a psychiatric examination was performed on the applicant. The psychiatrist made the impression that the applicant was a sexual deviant due to homosexuality, and that he had a history of homosexual involvement since his teens. The psychiatrist noted that the frequency of the applicant's homosexual acts had increased since their inception. He added that the applicant did not admit his homosexuality at the time of induction because he was embarrassed. The psychiatrist stated that since induction, the applicant's military adjustment had been marginal and attempts to rehabilitate him felt useless. He noted that the applicant felt he could not be a good Soldier and desired to be separated from the service. The psychiatrist found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in any Board proceedings. The psychiatrist also recommended that the applicant be separated under the provisions of Army Regulation 635-89 (Homosexuality). 7. On 24 May 1967, the applicant’s commanding officer recommended that he be discharged from the military service due to homosexuality, and that he be furnished a DD Form 258A (Undesirable Discharge Certificate). He also considered the applicant to be a homosexual, having performed frequent acts in the past, and that he considered him to be a Class II Homosexual. On 25 May 1967, the applicant's commander informed him that he was being recommended for separation and advised him of his rights to appear before a board of officers, submit statements on his own behalf, and to be represented by counsel. 8. Item 17 (Statement of Examinees Present Health in Own Words) of Standard Form 89 (Report of Medical History) that was completed during the applicant's pre-separation medical examination on 26 May 1967, shows he stated that he was in "OK-Good health." 9. On 31 May 1967, the applicant waived all of his rights, declined the opportunity to be represented by counsel and declined to submit a written statement in his own behalf. The applicant acknowledged that he understood that he might be discharged under conditions other than honorable, that he might be deprived of many rights and benefits as a veteran under both Federal and state law, and that he could expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the character of discharge received may have a bearing. 10. The applicant's chain of command unanimously recommended approval of the separation action and further recommended that the applicant be given an Undesirable Discharge Certificate. 11. The appropriate authority, a major general, approved the request for discharge on 5 June 1967. 12. Headquarters United States Army Personnel Center, Fort Dix, New Jersey Special Orders Number 163, dated 12 June 1967, discharged the applicant under the provisions of Army Regulation 635-89 effective 13 June 1967, under other than honorable conditions with issuance of an Undesirable Discharge Certificate, with Separation Program Number (SPN) 257 (Unfitness - Homosexual Acts). 13. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged accordingly. This form also shows that on the date of his discharge, the applicant had served 6 months and 1 day of active military service. 14. 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. 15. The applicant provides two half-page letters from clergymen who attest, in effect, that the applicant is an honest, trustworthy, and dependable man who is an asset to both his church and his community. 16. Army Regulation 635-89, in effect at the time, set forth the basic authority, criteria, and procedures for the disposition of personnel who are homosexuals and military personnel who engaged in homosexual acts, or who were alleged to have engaged in such acts. The policy in effect at the time was that personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity, and their prompt separation as a Class I, II or III homosexual, was mandatory. Under this regulation, the character of separation of a homosexual would be determined without regard to his or her component, sex, or status, and would be based upon consideration of all relevant facts in the case, including the individual's record of service. 17. Under the provisions of Army Regulation 635-89, homosexuals were divided into three classes. Class I included those cases which involved an invasion of the rights of another person as where the homosexual act is accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service. Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively. 18. Paragraph 15-3 (Criteria for discharge) of the current edition of Army Regulation 635-200 (Active Duty Enlisted Separations) provides that a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority: a. That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings that the member has demonstrated that: (1) such conduct is a departure from the member’s usual and customary behavior; (2) such conduct, under all the circumstances, is unlikely to recur; (3) such conduct was not accomplished by use of force, coercion, or intimidation; (4) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (5) the member does not have a propensity or intent to engage in homosexual acts. b. That the member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. c. That the member has married or attempted to marry a person known to be of the same biological sex. 19. Paragraph 15-4 (Characterization or Description of Service) of Army Regulation 635-200, in pertinent part, provides that when the sole basis for separation is homosexual conduct, commanders have the ability to determine the type of discharge based upon the overall character of the Soldier's service. 20. 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. 21. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his undesirable discharge should be upgraded to an honorable discharge based on current Army standards was carefully considered and determined to be without merit. 2. Although under today’s standards, Soldiers discharged for homosexuality may be considered for an honorable discharge provided other aspects of their military service were honorable, the applicant not only admitted to being a homosexual since around 14 years of age, he also admitted to committing homosexual acts while he was on convalescent leave and was subject to military control. This likely had an adverse impact on his commander's assessment of his overall character of service. As such, the applicant could have received the exact same discharge today had he committed the acts he confessed to committing in 1967. 3. The record shows that the applicant desired to be separated from the Army based on his sexual orientation and his inability to adjust to military service. 4. Records further show that following admission of his homosexuality, the applicant was notified by his commander of the intended separation action. The applicant waived his rights, declined the opportunity to be represented by counsel, and declined to submit a written statement in his own behalf. 5. The record shows no indication that the applicant was hospitalized at the time of his separation and that he acknowledged that he was in good health during his pre-separation medical examination. 6. The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights. Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case. 7. In order to justify correction of a military record the applicant must show that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 8. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __YM____ __SLP_ _ _EEM___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __Shirley L. Powell____ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.