IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022161 


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 reconsideration of changing the narrative reason for separation of her deceased son, a former service member (FSM).  As a new issue, she requests the FSM's character of service be changed to an honorable discharge.

2.  The applicant states this incident was not observed by any ranking official and was all hearsay.  It was not proven beyond a shadow of doubt and she would like it changed to an honorable discharge with the reason uncharacterized.

3.  The applicant provides a 2-page handwritten letter and the FSM's death certificate, birth certificate, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090015719 on 18 March 2010.

2.  The FSM's complete military records are not available for review.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The FSM enlisted in the Regular Army on 13 June 1984.  He completed training as a multi-channel communications specialist and was transferred to Germany for duty in a field artillery battery.  He was advanced to pay grade E-4 on 1 September 1985.

4.  The facts and circumstances surrounding his administrative discharge are not in the available records.  However, his DD Form 214 shows he was discharged under honorable conditions on 31 December 1985 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 15-2a, due to having engaged, attempted to engage in, or solicited another to engage in homosexual acts.

5.  His DD Form 214 shows he was assigned a separation program designator (SPD) code of "JRA" and an RE code of 4.  He completed 1 year, 6 months, and 18 days of active military service.  The available evidence does not indicate he received any disciplinary action for misconduct during this period.

6.  The FSM died on 28 February 2006 at the age of 39.  He was married at the time of his death.

7.  The applicant provides a 2-page self-authored statement attesting:

	a.  The FSM's discharge was based on hearsay and no one of rank or authority saw or heard this first hand.

	b.  The FSM has two sons who are grown now.  He was a great father, coached their ball teams, ran the soap box derby tournament, and never missed a school function.

	c.  She doesn't want her son and her grandsons to be scarred by something someone claimed rather than on his own merits.

8.  The available evidence does not show the FSM ever applied to the Army Discharge Review Board for an upgrade of his discharge or for a change in his narrative reason for separation during that board's 15-year statute of limitations.

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 (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under "Don't Ask, Don't Tell" (DADT) or prior policies.

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

* narrative reason for discharge to "Secretarial Authority" and the SPD code to JFF
* characterization of the discharge to honorable
* RE code to an 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 periods.  Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the FSM's administrative separation was accomplished in accordance with the applicable regulations with no violations of any of the FSM's rights.

2.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reason for discharge and, when appropriate, characterizations of service changed.



3.  Therefore, the applicant's DD Form 214 should be amended to show his:

* narrative reason for discharge as "Secretarial Authority"
* SPD code as JFF
* RE code to an immediately-eligible-to-reenter category

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20090015719, dated 18 March 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the FSM 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 31 December 1985.



      ___________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)                                         AR20110022161



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ABCMR Record of Proceedings (cont)                                         AR20110022161



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