IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110022835 


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, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to amend item 28 (Narrative Reason for Separation).

2.  The applicant states her request is due to repeal of "Don't Ask, Don't Tell (DADT)."

3.  The applicant provides no additional evidence.

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.  Her official military record shows she enlisted in the Regular Army on 3 October 2000.  She completed basic combat and advanced individual training and was awarded military occupational specialty 95B (Military Police).

3.  The specific facts and circumstances surrounding her discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for her discharge.  The DD Form 214 shows she was honorably discharged on 8 March 2002 under the provisions of paragraph 15-3a of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  Her DD Form 214 shows in:

* Item 24 (Character of Service) – HONORABLE
* item 25 (Separation Authority) – ARMY REGULATION 635-200, PARAGRAPH 15-3a
* item 26 (Separation Code) – JRA
* item 27 (Reentry Code) – 4
* item 28 – HOMOSEXUAL ACT

4.  Her records do not reflect any aggravating factors such as misconduct.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  Paragraph 15-3a provides for the separation of members who engaged in or solicited another to engage in a homosexual act.

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
This regulation prescribes that SPD code JRA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 15-3a, based on commission of a homosexual act.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

7.  The Under Secretary of Defense for 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 DADT or prior policies.

8.  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"
* SPD code to "JFF"
* characterization to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

9.  For the above corrections/amendments 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

10.  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.

11.  The memorandum also recognized that although BCM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, 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 by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's record is void of the specific facts and circumstances surrounding her discharge processing, it does contain a properly-constituted DD Form 214 that identifies the authority, reason, and characterization of the applicant's service.

2.  It appears her honorable discharge based on commission of a homosexual act was conducted in accordance with law and regulations in effect at the time.  

3.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reasons for discharge changed.

4.  In view of the above, it would be appropriate to issue her a new DD Form 214 showing the separation authority as "ARMY REGULATION 635-200, PARAGRAPH 5-3," the SPD code as "JFF," the RE code as "1," and the narrative reason for separation as "SECRETARIAL AUTHORITY."

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing her a new DD Form 214 amending the following items:

* item 25 to read "ARMY REGULATION 635-200, PARAGRAPH 5-3"
* item 26 to read "JFF"
* item 27 to read "1"
* item 28 to read "SECRETARIAL AUTHORITY"



      __________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)                                         AR20110022835



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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