IN THE CASE OF:	  

		BOARD DATE:  26 January 2012

		DOCKET NUMBER:  AR20110013942 


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 the narrative reason for separation (Admission of Homosexuality/Bisexuality) be removed from her DD Form 214 (Certificate of Release or Discharge from Active Duty) due to repeal of the Don't Ask, Don't Tell (DADT) policy.

2.  The applicant states she was under a lot of stress and she was made to say she was a lesbian.  She was not a lesbian but she was introduced to this life style in the military.  She feels she started the DADT policy and she should be compensated. 

3.  The applicant provides her DD Form 214 and separation packet.

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 records show she enlisted in the Regular Army on 23 March 1982 and she held military occupational specialty 94B (Food Service Specialist). She was assigned to the 57th Transportation Company, 240th Quartermaster Battalion, Fort Lee, VA.

3.  Her records show she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 22 July 1982, for missing bed check
* on 23 November 1982, for twice failing to go at the time prescribed to her appointed place of duty
* on 7 December 1982, for approaching another Soldier and harassing her by making sexually-oriented comments toward her

4.  Her records also show during her service she was frequently counseled by her chain of command for various infractions including being drunk and disorderly, arrest by military police for public intoxication, and disobeying orders. 

5.  On 7 December 1982, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations) for homosexuality.  The specific reasons for the discharge were that the applicant stated she was homosexual and she solicited another to engage in a homosexual act.  

6.  On 10 December 1982, the applicant acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel.  She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She elected not to submit a statement on her own behalf.  She further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

7.  Subsequent to this acknowledgement, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of homosexuality.

8.  On 27 December 1982, her intermediate commander recommended approval. 



9.  On 10 January 1983, her immediate commander notified her that in his original notification memorandum, she was not informed of all her rights.  Specifically, she was not informed of her right regarding an administrative separation board to determine her discharge.

10.  On 10 January 1983, the applicant consulted with legal counsel.  She requested consideration of her case by a board of officers and personal appearance before a board of officers.  

11.  On 27 January 1983, her senior commander recommended her case be referred to a board of officers.

12.  On 31 January 1983, she was appointed a military counsel to represent her before a board of officers.

13.  On 14 February 1983, she withdrew her request for a board of officers and submitted a statement wherein she stated:

* She never approached another female sexually unless she was under the influence of alcohol or had been approached sexually by that female previously
* Prior to the military, she had no contact with homosexuality
* During her military service, she was constantly placed in situations by males which made it difficult for her to perform her duties
* The males constantly talked about sex or made sexually harassing remarks
* She felt she was confused about her sexuality at the time
* She felt it was in her best interest and that of the Army if she separated

14.  On 1 March 1983, she consulted with legal counsel.  She was again advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by a board of officers and/or appearance before a board of officers.  She further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

15.  On 4 March 1983, a Staff Judge Advocate conducted a legal review of the applicant's separation packet.  He found it legally sufficient. 



16.  On 14 March 1983, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with the issuance of a general discharge under honorable conditions.  Accordingly, she was discharged on 23 March 1983.  Her DD Form 214 shows she completed 1 year and 1 day of creditable active service.

17.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge or concerning the narrative reason for her separation within that board's 15-year statute of limitation.

18.  Army Regulation 635-200, chapter 15, prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted 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; 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 service.

19.  The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

20.  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, U.S. 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 DADT or prior policies.  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

21.  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

22.  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.

23.  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 those 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.

24.  On 4 January 2012, the applicant was asked if she would accept a change to the narrative reason for her separation to “misconduct” if the Board believed that her narrative reason for separation should be changed but that it should be changed to conform to current standards.  She failed to respond within the time frame given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from March 1982 to March 1983.  During her military service, she committed a homosexual act (kissing a member of the same sex), solicited another to engage in a homosexual act, and stated that she was a homosexual.  Given these factors, her chain of command initiated separation action against her. 

2.  Although DADT is repealed effective 20 September 2011, her discharge occurred prior to the DADT policy and her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of her discharge was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

3.  The applicant's record contains adverse disciplinary action in the form of three instances of NJP, one of which was for harassing another Soldier and soliciting a homosexual act as well as adverse counseling statements.  The underlying conduct is that she engaged in sexually harassing misconduct.  In view of the foregoing, and since she failed to indicate that she would accept changing the narrative reason for her separation to “misconduct,” her overall record of service does not merit a change to the narrative reason for her separation.

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)                                         AR20110013942



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ABCMR Record of Proceedings (cont)                                         AR20110013942



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