IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110020585 


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 general discharge to an honorable discharge and change of the reason and authority for his discharge.

2.  The applicant states even though he requested an honorable discharge he was not given one.  He served honorably during his prior Army service.  The reason and authority for his discharge is unjust, demeaning, and inapplicable now that Don't Ask Don’t Tell (DADT) has been repealed.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 August 1973 and his General Discharge Certificate.

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.  Having had prior Regular Army (RA) active service between 1967 and 1970, the applicant enlisted in the RA on 8 June 1973 and he held military occupational specialty 71M (Chaplain Assistant).  He was assigned to the 3rd Air Defense Artillery Training Brigade, Fort Bliss, TX.

3.  On 5 July 1973, he underwent a mental hygiene examination.  The examining physician determined the applicant had an emotionally unstable personality and he psychiatrically cleared the applicant for administrative separation.  The physician also stated the applicant had 3 years of prior service and he had been honorably separated from the Army in 1970.  He returned to his home town and subsequently became involved in sexual activity which led to an identity and emotional crisis.  Since the applicant's arrival on post, he found himself unable to function adequately because of anxiety, depression, and the fear of acting on underlying sexual impulses manifested by attraction to members of the same sex.

4.  On 9 July 1973, he was notified by his immediate commander that discharge action was being initiated against him for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 because of his admission to homosexual tendencies.

5.  On 9 July 1973, he acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the procedures and rights available to him.

6.  On 9 July 1973, his immediate commander recommended the applicant be discharged for unsuitability under the provisions of Army Regulation 635-200, chapter 13, due to the applicant's admission to homosexual tendencies.  In the request, the commander stated the applicant's performance of duty had been satisfactory, he had no record of disciplinary action, and his current conduct and efficiency ratings were excellent.

7.  On 10 July 1973, his senior commander recommended approval of his discharge for unsuitability under the provisions of Army Regulation 635-200, chapter 13.

8.  On 3 August 1973, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 10 August 1973, he was discharged accordingly.


9.  The DD Form 214 he was issued for this period of service confirms he was discharged by reason of unsuitability under the provisions of Army Regulation 635-200, chapter 13, with an under honorable conditions characterization of service.  He completed 2 months and 3 days of creditable active service during this period of service.  He was given a reenlistment (RE) code of 3.

10.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, contained the policy and outlined the procedures for separating individuals for unsuitability.  It provided that individuals would be discharged by reason of unsuitability when their records were characterized by one or more of the following:  (a) inaptitude due to a lack of general adaptability, (b) personality disorders determined by medical authority, (c) apathy and defective attitudes, and/or (d) homosexuality; applicable to personnel who have not engaged in a homosexual act during military service but had a record of pre-service homosexual acts.  This regulation prescribed that an individual discharged for unsuitability would be furnished an honorable or a general discharge.

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 DADT or prior policies.

13.  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

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 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 evidence of record shows the applicant was discharged on 10 August 1973 under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with a general discharge after he identified himself as having homosexual tendencies.

2.  His discharge for unsuitability 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 due to homosexuality should now have their reason for discharge and characterizations of service changed.

4.  In view of the foregoing, the applicant's record should be corrected as recommended below.


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 effective
10 August 1973 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.  Issuing him an Honorable Discharge Certificate, dated 10 August 1973, in lieu of the General Discharge Certificate he now holds.



      _________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)                                         AR20110020585



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ABCMR Record of Proceedings (cont)                                         AR20110020585



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