ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170009757


APPLICANT REQUESTS:  in effect, removal to any reference of being homosexual from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) one (1) showing honorable discharge and one (1) with an under honorable conditions
* Self-Authored Statement
* DA Form 1379 (United States Army Reserve Components Unit Record and Reserve Training)
* DD Form 4 (Enlistment Contract-Armed Forces of the United States (US)
* Army Discharge Review Board (ADRB) decision letter dated 2 March 1973

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states that he would like to have the removal of “homosexual, gay, queer” from his DD Form 214.  He states that his discharge certificate was mailed to his wife in 1973 and it is not true, he has never had sex with a male and was not aware that his discharge certificate stated this.  He states that after 2 years in service and while he was doing his annual initial training with the 5th of the 6th Artillery in Germany his dad fell sick. He requested to leave and return to the United States and when he returned he was told that his discharge was a hardship.  He states that his mail went to his ex-wife and after 42 years he found out his discharge stated that he was gay and he has never been gay and, therefore, now he is requesting that it be changed to a hardship 


3.  The applicant provides:

	a.  A self-authored statement surrounding the circumstances of his notification of his discharge documents stating that he is a homosexual.  He explains that he was not receiving his mail and that by time he did receive it his separation does not reflect a hardship, it reflects homosexuality.  He asks the Board to change it to reflect a hardship, he does not know what happened 

	b.  DD Form 4 that reflects an enlistment period into the Army National Guard.  The document is hard to read, it shows total active federal service for 8 months and 20 days and his prior service time is listed from 18 February 1970 to 7 November 1970.  The applicant noted on this document that it should have been a hardship under the reason for discharge.

4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 18 February 1970.

	b.  His DA Form 20 (Enlisted Qualification Record) shows he served in Germany from 24 July1970 to 12 February 1973. 

	c.  On 29 October 1970, the applicant’s immediate commander notified the applicant he was considering the applicant for elimination from military service for unsuitability (inaptitude, character and behavior disorder, and apathy), under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 

	d.  On 29 October 1970, the applicant acknowledged receipt of the contemplated separation action for unsuitability.  He consulted with counsel and waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

	e.  Following the applicant's acknowledgement, his immediate commander initiated action to separate him from the Army under the provisions of AR 635-212 due to unsuitability.  The commander listed the applicant’s inaptitude, character and behavior disorders, apathy and enuresis.  He stated that the applicant suffers from a serious mental afflication which has troubled him since childhood.  He recommended elimination from service due for unsuitability.  The commander stated that:

* this elimination action is based on the deduction that the applicant had no value to the unit or the Army
* the applicant had shown a complete inability to learn, a lack of appropriate interest, and he was unable to expend efforts constructively
* the psychiatric evaluation recommended his separation and indicated that he suffers from a serious mental affliction which had troubled him since childhood

	f.  On 30 October 1970, the separation authority approved the discharge action under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) elimination for unsuitability and ordered the applicant furnished a General Discharge Certificate.  

	g.  On 7 November 1970, he was discharged.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show he was discharged with a under honorable conditions (general) discharge, under the provisions of AR 635-212 unsuitability, character and behavioral disorder with separation program number (SPN) 264 (unsuitability).  He completed 8 months, and 20 days active service.

5.  There is no indication in his service records that shows he applied for or was separated due to hardship. 

6.  On 2 March 1973, the Army Discharge Review Board (ARBA) considered his case and determined that he was not equitably discharged, that he was entitled to an honorable discharge under the provisions of Army Regulation 635 -212, SPN 264.  He was reissued a new DD Form 214 reflecting his upgraded character of service to honorable but with the same reason for separation (SPN 264, unsuitability). 

7.  By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

	b.  Chapter 6 states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted.

	c.  Also chapter 6, paragraph 6-3b(1), states a married Soldier who becomes a parent by birth, adoption, or marriage (stepparent) and whose child (or children) is less than 18 years of age and resides within the household, may apply for separation under hardship.  The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that the Soldier cannot fulfill his or her military obligation without neglecting the child or children.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon the applicant’s current DD Form 214 failing to reference to any reference to his discharge being related to homosexual conduct, the Board concluded that there is no relief that would appropriate.  In addition, he did not provide his Discharge Certificate for the Board to consider.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) in effect at the time, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. 

   a.  Paragraph 13-2 states action was to be taken to separate an individual for unfitness when, in the commander's opinion, it is clearly established that: despite attempts to rehabilitate or develop him/her as a satisfactory soldier further effort is unlikely to succeed; or rehabilitation is impracticable or he/she is not amendable to rehabilitation measures; or an unfitting medical condition is not the direct or substantial contributing cause of his unfitness.  An individual separated by this reason will normally be furnished an undesirable discharge certificate. 

	b.  Paragraph 13-5 states that an individual was subject to separation for Unfitness when one or more of the following conditions existed: frequent incident of a discreditable nature with civil or military authorities, sexual perversion including but not limited to: lewd and lascivious acts; indecent exposure; indecent acts with, or assault upon, a child or other indecent acts or offenses, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern of shirking, an established pattern showing dishonorable failure to pay just debts and an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents.   

3.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel.  

	Paragraph 3-7 (a) (Honorable Discharge) an honorable discharge is a separation with honor.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	Paragraph 3-7 (b) (General Discharge) 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.

ABCMR Record of Proceedings (cont)	 AR20170009757


5


1