IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110004952 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he was young and far away from his family and he could not bear being separated from them for another two years.  He mistakenly listened to some civilians and told the military he was a homosexual to get discharged.

3.  The applicant provides no additional evidence.

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.  On 5 September 1968, the applicant enlisted in the Regular Army at age 17 with parental consent.  He successfully completed basic combat training (BCT) and advanced individual training (AIT) and he was awarded military occupational specialty 63B (Wheeled Vehicle Repairman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) that he received the following conduct and efficiency ratings:

BCT
7 October - 29 November 1968
Exc/Exc
AIT
30 November 1968- 18 January 1969
Exc/Unsat
AIT
19 January – 21 March 1969
Exc/Exc
Service School
22 March – 16 June 1969
Good/Good
Alaska
17 June 1969 – 15 January 1970
Poor/Poor
4.  After receiving the "Unsat" efficiency rating on 18 January 1969, the applicant was moved to training in a different MOS (63B).

5.  On 6 March 1969, the applicant received a negative counseling statement for fighting in the barracks.  He sustained a minor back injury during the fight that was found not to be in the line of duty.

6.  On 28 August 1969, the applicant was evaluated at the Fort Richardson, AK Mental Hygiene Clinic as a self-confessed homosexual.  During the examination he admitted to having had homosexual relationships since age 13 or 14.  He stated he had several encounters both during training and since being assigned to Alaska.  He indicated that he had been in a continuous homosexual relationship for the 6 weeks prior to the date of the examination.  The applicant was diagnosed with a personality disorder, sexual deviation - homosexuality.  He was found to be free of any mental or physical defect or illness.

7.  On 5 September 1969, the Criminal Investigation Division (CID) commenced an investigation into the possibility of homosexual activity on the part of the applicant.  The applicant provided CID with a statement wherein he stated that he had his first homosexual experience at age 13 or 14 with frequent casual relationships prior to joining the Army.  He admitted to engaging in several "one-nighters" with civilians during AIT as well as having one encounter with a fellow Soldier at Fort Knox.  Upon arrival in Alaska, he reported having several sexual encounters with civilians as well as one with another member of his unit.


8.  The CID investigation includes a statement from Mr. P---- D- S------, the applicant's alleged sexual partner in Alaska.  While he confirmed he was a homosexual himself, he refused to confirm or deny that he had sexual relations with the applicant.  He did state the applicant had advised him that he was 
homosexual.  Anchorage Police Department records show that Mr. D- S------ had been investigated for a homosexual assault and he was listed by them as a homosexual.

9.  On 10 December 1969, the applicant's command initiated separation proceedings against him under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuals) for unsuitability due to homosexuality.

10.  After consulting with counsel, the applicant acknowledged the proposed separation action and waived his rights to counsel, to appear before a board of officers, and to submit a statement in his own behalf.

11.  On 6 January 1970, the discharge authority approved the applicant's separation.

12.  On 21 January 1970, the applicant was discharged under the provisions of Army Regulation 635-89 with a separation program number of 258, an Undesirable Discharge Certificate, a character of service of under conditions other than honorable, and with a reenlistment (RE) code of 4.  He completed 1 year, 3 months, and 25 days of total active service.

13.  Army Regulation 635-89, then in effect, set forth the policies and procedures for separation of Soldiers for homosexuality.  It stated 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 was mandatory.  It stated enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate could be issued when an individual had been awarded a personal decoration or if warranted by the particular circumstances in a given case.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the general policies and procedures for enlisted personnel separations.  

	a.  Paragraph 1-9d(1) stated an honorable discharge was a separation with honor.  Issuance of an honorable discharge would be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment or current period of service.  A member's service would be characterized as honorable under the following standards:

   * Had all conduct ratings of at least "Good"
   * Had all efficiency ratings of at least "Fair"
* Had not been convicted by a general court-martial
* Had not been convicted more than once by a special court-martial

	b.  Paragraph 1-9d(2) stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  

15.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under Don't Ask, Don't Tell (DADT) or prior policies.

16.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

17.  For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:

* the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct

18.  The memorandum further states that although each request must be evaluated on a case-by case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.

19.  The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DoD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted.  Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DoD regulations implementing various aspects of DADT [or prior policies] were valid regulations during that same or prior periods.  Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of his discharge was commensurate with the reason for his discharge and his overall record of military service, as evidenced by his conduct and efficiency ratings, in accordance with the governing regulations in effect at the time.

2.  Nevertheless, the law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed.

3.  Notwithstanding the applicant's overall conduct and efficiency ratings, the only evidence of misconduct is one negative counseling statement for fighting in the barracks (during which time he received a "good" conduct and efficiency rating).  The "Unsat" efficiency rating appears to have been due to an inability to train in a particular skill, and the only evidence supporting the "poor" conduct and efficiency rating is his homosexual admission.  It appears his overall record of service merits a characterization of service upgrade to fully honorable.

BOARD VOTE:

___X____  ___X____  ____X___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), with an RE code of 1, on 21 January 1970; and

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 21 January 1970.



      __________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)                                         AR20110004952



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ABCMR Record of Proceedings (cont)                                         AR20110004952



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