BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110020305 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she received an honorable discharge and to amend item 28 (Narrative Reason for Separation).

2.  The applicant states she was discharged in 1983 due to her sexual orientation and this has prevented her from holding a state or federal job.  She has not been able to use the honorable time spent in the service as a job reference and this has been a dark cloud over her head.  In light of the recent developments in laws governing homosexuals serving in the military, she would like an amendment made to her DD Form 214.

3.  The applicant provides her 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.  The applicant's records show she enlisted in the Regular Army on 5 February 1982 and she held military occupational specialty 64C (Motor Transport Operator).  She was assigned to the 68th Transportation Company, 28th Transportation Battalion, Germany, on 16 August 1983.

3.  Her records contain a statement, dated 19 August 1983, written by her immediate commander wherein he stated he asked the applicant if she was a homosexual and she said yes.  He then informed her it was his duty to recommend she be eliminated from the Army.

4.  On 20 October 1983, she was notified by her immediate commander that discharge action was being initiated against her under the provisions of paragraph 15-3b, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for homosexuality.  Specifically, the commander stated that she freely admitted she was a homosexual and homosexuality was not conducive to the successful completion of the unit's mission and was bad for morale.

5.  On 20 October 1983, she acknowledged notification of the proposed discharge action and she was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to her.  She waived her right to consult with legal counsel and elected not to submit a statement on her own behalf.

6.  On an unknown date, her senior commander recommended approval of her separation under the provisions of paragraph 15-3b, Army Regulation 635-200.  

7.  On 25 October 1983, the separation authority approved her discharge under the provisions of paragraph 15-3b, Army Regulation 635-200, for homosexuality and directed the issuance of a General Discharge Certificate.  On 18 November 1983, she was discharged accordingly.  

8.  The DD Form 214 she was issued confirms she was discharged under the provisions of paragraph 15-3b, Army Regulation 635-200, paragraph 14-12b, by reason of "Admission of Homosexuality/Bisexuality" with an under honorable conditions character of service.  She completed 1 year, 9 months, and 14 days of creditable active service.

9.  Her record is void of any record of adverse counseling or disciplinary actions.

10.  Army Regulation 635-200, in effect at the time, set forth the general policies and procedures for enlisted personnel separations.  

	a.  Paragraph 3-7a(1) stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b(1) 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.  

11.  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.

12.  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

13.  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

14.  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.



15.  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 her discharge was commensurate with the reason for her discharge 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.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, her 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 her a new DD Form 214 to show she was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), with an RE code of 1, on 18 November 1983, and

	b.  issuing her an Honorable Discharge Certificate, dated 18 November 1983.



      _______ _   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)                                         AR20110020305





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ABCMR Record of Proceedings (cont)                                         AR20110020305



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