IN THE CASE OF:
BOARD DATE: 24 May 2012
DOCKET NUMBER: AR20110021774
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 the narrative reason for his discharge be changed.
2. The applicant states that the current narrative reason shows discrimination and violates his rights.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 20 November 1985. He completed training and was serving in Germany in pay grade E-4.
2. During an investigation, in October 1987, the applicant admitted that he was homosexual/bisexual.
3. On 3 February 1988 the applicant was separated with a general discharge under honorable conditions due to an admission of homosexuality/bisexuality.
4. The discharge package is not contained in the available records. There is no adjudicated misconduct in the available records.
5. There is no indication that the applicant ever applied to the Army Discharge Review Board to change of his discharge.
6. 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.
7. 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
8. 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
9. 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.
10. 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.
11. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
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 his discharge was commensurate with the reason for his 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, his overall record of service merits a characterization of service upgrade to fully honorable by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1".
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 the Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for the period ending 3 February 1988 and 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".
__________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) AR20110021774
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ABCMR Record of Proceedings (cont) AR20110021774
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