IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100011616 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states, in effect, his DD Form 214 contains an entry which erroneously implies that he is "bisexual" instead of "bipolar."  He contends he is not bisexual; he is bipolar and he has been married to his wife for 20 years.  He concludes the word "bisexual" should not appear on his DD Form 214.

3.  He provides a copy of his DD Form 214.

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.  His records show he enlisted in the Regular Army on 23 October 1984 and he held military occupational specialty (MOS) 91A (Medical Specialist).  The highest rank/pay grade he attained during his military service was private (PV2)/E-2.

3.  On 12 August 1985, he underwent a mental status evaluation due to the fact he was being considered for administrative discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
chapter 15 (Separation for Homosexuality).  The Chief of Community Mental Health Services (CMHS), Fort Ord, CA, noted the applicant identified himself as "homosexual."  He stated there was no medical or psychiatric procedure or test which objectively or definitively establishes a person's sexual behavior.  The Chief of CMHS rendered the following observations and opinions regarding the applicant:

* his behavior was normal
* he was fully alert
* he was fully oriented
* his mood and affect were unremarkable
* his thinking process was clear
* his thought content was normal
* his memory was good
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible
* he met medical retention requirements
* he was psychiatrically cleared for any administrative action deemed appropriate by his command

4.  On 22 August 1985, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of admission of homosexuality.  He acknowledged receipt of the commander's notification on the same day.

5.  On 23 August 1985, he was advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 15-3b, for having admitted to being homosexual or bisexual.

6.  On 27 August 1985, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 15-3b, for having admitted to being homosexual or bisexual.

7.  His record contains a DA Form 2823 (Sworn Statement), dated 4 September 1985, in which he rendered the following statement under oath:

I, [applicant's full name], want it to be known that I am a homosexual, and that I have never under any condition committed homosexual acts with an active duty Soldier.

8.  On 5 September 1985, the separation authority approved the recommended separation action against the applicant in accordance with Army Regulation
635-200, paragraph 15-3b, and directed the issuance of an Honorable Discharge Certificate.

9.  On 17 September 1985, he was discharged accordingly.  His DD Form 214 shows he completed 10 months and 25 days of creditable active service during this period.  The form also contains the following entries:

* item 25 (Separation Authority) contains the entry "Army Regulation
635-200, Paragraph 15-3b"
* item 26 (Separation Code) contains the entry "JRB"
* item 28 (Narrative Reason for Separation) contains the entry "Admission of homosexuality/bisexuality"

10.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed as bipolar during his period of service.

11.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 15-3b provided that a Soldier could be separated for having admitted to being homosexual or bisexual.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The "JRB" SPD code is the correct code for members separating under the provisions of paragraph 15-3b of Army Regulation 635-200 and the narrative reason for separation is "Admission of homosexuality/bisexuality."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DD Form 214 should be corrected by changing the word "bisexual" in his narrative reason for separation to "bipolar" was carefully considered and determined to lack merit.

2.  Evidence shows he voluntarily rendered a sworn statement, wherein he admitted to being a homosexual.

3.  Evidence also shows he underwent a mental status evaluation as part of pre-separation processing and he was not diagnosed with any type of mental disorder. As a result, he was psychiatrically cleared for any administrative action deemed appropriate by his command.

4.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of discharge is commensurate with the applicant's overall record of military service.

5.  The applicant's narrative reason for separation was assigned based on the fact he was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of admission of homosexuality or bisexuality.  The only valid narrative reason for separation permitted under this paragraph and its corresponding SPD code is "Admission of homosexuality/bisexuality."  Therefore, the required narrative reason for separation was applied to his DD Form 214.

6.  There is no evidence in the available records nor did the applicant provide any evidence that he was diagnosed as bipolar during his period of service or any other reason to warrant a removal of or a change to his narrative reason for separation.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X _______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20100011616



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ABCMR Record of Proceedings (cont)                                         AR20100011616



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