IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019239 


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 that the separation authority, narrative reason for separation, and Reentry (RE) code on her discharge be changed to show that she was medically discharged with a RE code of “1” and that she was discharged in the pay grade of E-5.

2.  The applicant states, in effect, that she was unjustly discharged as a homosexual, she was not then, nor has she ever been a homosexual.  She goes on to state that it was an accusation made by the Army, it was untrue then, and it is still untrue.  She further states that she has a medical condition (post-traumatic stress disorder (PTSD)) that is a mental condition for which she is currently service-connected.  She continues by stating that while in Iraq her commander told her he intended to promote her to the pay grade of E-5.  Accordingly, she desires to have her records show that she was discharged in the pay grade of 
E-5.

3.  The applicant provides copies of her:

* DD Form 214 (Certificate of Release or Discharge from Active Duty
* NGB Form 22 (Report of Separation and Record of Service)
* Correspondence written between her and her Congressional Representative
* Six pages of Chronological Records of Medical Care
* Department of Veterans Affairs (VA) Rating Decision 


CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 10 August 1981 to 9 August 1985 when she was honorably released from active duty due to completion of required service.

2.  She enlisted in the West Virginia Army National Guard (WVARNG) on 31 January 1997 for a period of 3 years and was honorably discharged on 2 February 1998 due to pregnancy.

3.  She again enlisted in the WVARNG, on 6 July 2007, in the pay grade of E-4.  She was ordered to active duty in support of Operation Iraqi Freedom on 11 February 2009 and she deployed to Iraq on 16 April 2009.

4.  On 30 August 2009, her commander notified her that he was initiating action to discharge her from the service under the provisions of Army Regulation 
635-200, paragraph 15-2, based on homosexual conduct.  He cited as the basis for his recommendation that the applicant had made a statement to the effect that she wanted to make love and French kiss another female Soldier, which created a rebuttable presumption that indicated she engages in, attempts to engage in, or intends to engage in homosexual or bisexual acts.  He also indicated that she failed to respond to several counseling's on the matter of her conduct and that her "performance level was a 3/7 on a scale of 10."

5.  On 14 October 2009, after consulting with defense counsel, the applicant submitted a request for a conditional waiver in which she agreed to waive consideration of her case by an administrative separation board in return for no less than an honorable characterization of service.

6.  On 30 October 2009, the appropriate authority approved her request for a conditional waiver and directed that she be furnished an Honorable Discharge Certificate.

7.  On 23 November 2009, she returned to Fort Stewart, Georgia where she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 15-3B, for homosexual conduct (admission), on 28 January 2010.  She was assigned a Separation Program Designator (SPD) code of "JRB" and an RE Code of “4.”

8.  On 7 February 2010, she was honorably discharged from the WVARNG and as a Reserve of the Army under the provisions of National Guard Regulation 


600-200 (Enlisted Personnel Management), paragraph 6-35g, for homosexual conduct.  She was issued an RE code of “4.”

9.  A review of her official records failed to show any indication that the applicant was on a promotion standing list for promotion to the pay grade of E-5, that she was in a promotable status or that she was recommended for promotion.  Her records also contain no derogatory information.  Additionally, there is no evidence in the available records to show that she was deemed medically unfit for separation or retention at the time of discharge.

10.  An RE code of "4" indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a non-waivable disqualification such as homosexuality, a Department of the Army imposed bar to reenlistment or commission of a serious offense.  

11.  Army Regulation 635-200, chapter 15, in effect at the time, provided the policies and procedures for separating personnel for homosexuality.  Paragraph 15-3b provides, in pertinent part, that a Soldier will be separated under that chapter if the Soldier has stated that he or she is a homosexual or is bi-sexual, unless there is a further finding that the Soldier is not homosexual or bi-sexual.  The regulation in effect at the time provided that homosexuality seriously impairs the accomplishment of the military mission and was incompatible with military service.

12.  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 Don't Ask, Don't Tell (DADT) or prior policies.

13.  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" (SPD code JFF)
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category


14.  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

15.  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.

16.  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 Department of Defense (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 period 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 service was commensurate with the reason for discharge and her overall record of military service 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 during the period in question, this was the only evidence of a derogatory nature in her records and should not serve to bar her from future service as a RE code of “4” will do.  Accordingly, it appears her overall record of service merits her RE code being changed to a “1.” 

4.  However, the applicant’s contention that she should have been promoted and discharged in the pay grade of E-5 appears to lack merit.  The applicant has failed to show through the evidence of record and the evidence submitted with her application that she was recommended for, met the requirement for, or was promoted to the pay grade of E-5.  Therefore, absent such evidence, there appears to be no basis to grant her request for promotion.

5.  Additionally, there is insufficient evidence in the available records to show that she was deemed medically unfit for separation or retention or that she suffered from PTSD at the time of discharge.  Accordingly, there appears to be no basis to correct her record to show she was discharged for medical reasons.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  voiding her DD Form 214 for the period ending 28 January 2010 and issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1"; and

	b.  voiding her NGB Form 22 for the period ending 7 February 2010 and issuing her a new NGB Form 22 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority, with an RE code of "1."

2.  It was further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing that she was promoted to the pay grade of E-5 and that she was discharged for medical reasons.



      ___________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)                                         AR20110019239



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ABCMR Record of Proceedings (cont)                                         AR20110019239



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