IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110022570 


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 under other than honorable conditions discharge to an honorable discharge.

2.  He states the Department of Veterans Affairs (VA) is “now accepting gays in the military” and this is why he was discharged with this type of discharge.

3.  He provides no additional documents.

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 enlisted in the Regular Army on 5 June 1974.  He completed training as a tactical wire operator and he was honorably discharged on 21 March 1977 for immediate reenlistment.  On 22 March 1977 he reenlisted for a period of 3 years.

3.  His available record does not indicate the applicant received any disciplinary actions during his military service.

4.  The complete facts and circumstances surrounding the applicant's administrative discharge are not in the available records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 10 August 1977 under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(7) by reason of unfitness – homosexual acts.  He was issued an Under Other Than Honorable Conditions Discharge Certificate, and assigned a separation program designator (SPD) of JKC and a reenlistment eligibility (RE) code of 4.  He completed 4 months and 19 days during this period of service, for 3 years, 
2 months, and 25 days of total active service, with no time lost.

5.  At the applicant's request, he was issued a memorandum from Headquarters, U.S. Army Training Center, Engineer, Fort Leonard Wood, MO, subject:  Reason for Separation, dated 10 August 1977.  The memorandum states the reason for his separation from active duty on 10 August 1977 was misconduct – homosexual, under the provisions of Army Regulation 635-200, chapter 13-5a(7), with an RE code of 4.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(7) of the regulation provided, that members involved in homosexual acts were subject to separation for unfitness.  An under other than honorable conditions discharge was normally considered appropriate.

8.  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.


9.  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

10.  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

11.  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.

12.  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.  In the absence of evidence to the contrary, it is presumed the applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-5a(7) for unfitness - homosexual acts were conducted in accordance with law and regulations applicable at the time.


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.  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 1977 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 1977, in lieu of the Under Other Than Honorable Conditions 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)                                         AR20110022570



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ABCMR Record of Proceedings (cont)                                         AR20110022570



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