BOARD DATE: 18 January 2012
DOCKET NUMBER: AR20110020897
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 an upgrade of her general, under honorable conditions discharge (GD) to an honorable discharge (HD).
2. The applicant states:
a. Thankfully, the policy regarding homosexuality in the military has changed and leads to her request for an upgrade of her GD.
b. She was discharged from the Army in 1978, after admitting her homosexual activity.
b. She served with the Heritage Hall Honor Platoon when she was taken out of school by the military police in handcuffs to be questioned as a result of allegations made by a want-to-be boyfriend.
c. She was a good Soldier who served in the Army without any misconduct.
d. Her very private lifestyle created a blemish on her record her entire life and has prevented her from applying for any government job and the resulting investigation prematurely involved her family when she was not ready to tell them.
3. The applicant provides:
* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 257A (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 applicants 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 applicants 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 29 December 1977. She completed basic combat training at Fort McClellan, Alabama, and was reassigned to advanced individual training (AIT) to Fort Devens, Massachusetts, on 24 February 1978.
3. On 30 August 1978, the applicant was notified by her immediate commander that discharge action was being initiated against her under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct. Specifically, the commander cited the following reasons as the basis for his action:
a. The applicant admitted she engaged in homosexual acts while a member of the Army, was a homosexual, and intended to continue to live a homosexual lifestyle.
b. The Department of the Army determined homosexuality was incompatible with military service.
4. On 31 August 1978, she acknowledged notification of the proposed discharge action and she was advised by consulting counsel of the basis for the contemplated separation action, the possible effects of a GD and discharge under other than honorable conditions, and of the procedures and rights available to her.
5. The applicant waived her right to consideration of her case by a board of officers, personal appearance before a board of officers, and she elected to submit a statement on her own behalf. In her statement she indicated she was deserving of an HD because:
* she demonstrated the best of her ability in all military matters
* she showed a genuine interest in her work and always took great pride in her appearance and MC&C [interpreted to mean military code of conduct]
* she did not feel she was guilty of misconduct
* her involvements were private
* her sexual preference did not interfere with her military bearing
6. On 27 September 1978, the applicant's battalion commander, recommended she be granted an HD. He provided the following:
a. Except for her homosexual activity, the applicant was a reliable Soldier whose duty performance was commendable.
b. The applicant made a positive contribution to the School Brigade activities in the Heritage Hall Platoon and in her musical performances in the variety show and on Unit Day.
7. On 18 October 1978, the separation authority approved her discharge under the provisions of chapter 14, Army Regulation 635-200, for misconduct and directed the issuance of a General Discharge Certificate. On 20 October 1978, she was discharged accordingly.
8. The DD Form 214 she was issued confirms she was discharged under the provisions Chapter 14, Army Regulation 635-200, with GD. She completed 9 months and 22 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 members 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 20 October 1978, and
b. issuing her an Honorable Discharge Certificate, dated 20 October 1978.
_______ _ 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) AR20110020897
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