IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019633 


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, an upgrade of his general discharge to an honorable discharge and compensation for time he should have been allowed to serve.

2.  The applicant states, in effect, in 1964, after he was discharged he submitted a request for enlistment in the Army, but his request was denied.  He still wants to serve or be compensated for service he was not allowed to complete.  He believes his record is in error due to "Don't Ask, Don't Tell (DADT)." 

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, the applicant provided two DD Forms 214 which are sufficient for the Board to conduct a fair and impartial review of this case.

3.  Having had prior active service, the applicant's DD Form 214 shows he enlisted in the Regular Army (RA), on 29 October 1957, and he held military occupational specialty 716.60 (Personnel Specialist).  

4.  On 28 October 1963, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he completed 6 years of service during this period of service and he had 12 years, 5 months, and 18 days of prior service.

5.  On 29 October 1963, he reenlisted in the RA and served until he was discharged on 9 January 1964.  The DD Form 214 he was issued shows he completed 2 months and 11 days of active service during this period of service and he had 18 years, 5 months, and 18 days of prior service, which equals a total of 18 years, 7 months, and 29 days of active service.

6.  Item 11c (Reason and Authority) of this DD Form 214 shows he was discharged under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality), for homosexuality with an under honorable conditions characterization of service.  

7.  Army Regulation 635-89, in effect at the time, prescribed the authority for the disposition of military personnel who were homosexuals, who engaged in homosexual actions, or were alleged to have engaged in such acts.  This regulation stated the following definitions applied:

	a.  Homosexual Act - Bodily contact between persons of the same sex actively undertaken or passively permitted by either or both parties.

	b.  Class I - Those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.

	c.  Class II - Those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.  Class II 


also included all cases falling within Class I in which it was determined not to prefer charges or, if charges were preferred, not to refer them to a court-martial for trial.

	d.  Class III - Those cases in which service members have not engaged in a homosexual act during military service but have a verified record of pre-service homosexual acts.  Class III also included all other cases which did not fall within Class I or Class II. 

8.  Army Regulation 635-89 stated enlisted members whose cases were processed under the Class II category normally would be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge may be issued if warranted by the particular circumstances in a given case.  Enlisted members whose cases were processed under Class III would be furnished an honorable or general discharge based on the character of service rendered.

9.  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.

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

* narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF
* characterization of the service to honorable
* the RE code to immediately-eligible-to-reenter category

11.  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

12.  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.
13.  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 or prior period.  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 complete facts and circumstances surrounding the applicant's discharge are not available for review with case.  However, his DD Form 214 for the period ending 9 January 1964 shows he was discharged under the provisions of Army Regulation 635-89, for homosexuality with a general discharge.  

2.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

3.  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.

4.  In view of the foregoing, his service for the period ending on 9 January 1964 merits an upgrade to fully honorable.

5.  With respect to his request for compensation for additional time he should have been allowed to serve, the evidence of record shows his discharge complied with the laws and regulations in effect at that time.  There is no evidence that an error or injustice occurred.  Therefore, he is not entitled to this portion of the requested relief.



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 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 with an SPD code of JFF, and an RE code of 1, effective 9 January 1964; and

	b.  issuing him an Honorable Discharge Certificate, dated 9 January 1964.

2.  The Board further determined that the evidence presented is 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 compensating the applicant.




      _______ _   _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)                                         AR20110019633



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ABCMR Record of Proceedings (cont)                                         AR20110019633



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