IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110023382 


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 his discharge be upgraded to honorable, separation code changed to JBK, and reentry eligibility (RE) code changed to 1 because his discharge was improper and unjust.  He referred the Board to the attached brief in support of his request for correction of his military record.

2.  The applicant states:

* his discharge is unjust due to policy changes of the U.S. Army in regard to discharge of homosexuals
* his discharge is improper because it denied him the rights available to enlisted personnel in the administrative discharge proceedings
* he defers to counsel

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states:

* the applicant was discharged for the good of the service because he is a homosexual
* the applicant was accused of a homosexual act with another consenting male service member
* the applicant's superiors threatened and coerced him into requesting the chapter
* the applicant's discharge is unjust due to the change in current homosexual policy
* the applicant attest to sexual intimacy with a male service member and that it was not coerced or forced
* the applicant's discharge is improper, and prejudicial error occurred due to failure to process administrative separation according to Army Regulation 635-200 (Personnel Separations – Enlisted Personnel ), chapter 10
* the applicant's discharge should be upgraded to honorable
* the separation code should be changed to JBK
* the reentry code should be changed to 1

2.  The applicant provides a five-page legal brief in support of his request.

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 record shows the applicant enlisted in the Regular Army on 7 February 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant's request for discharge for the good of the service, dated 3 February 1990, shows he was charged with one specification of disobeying a lawful order and two specifications of indecent assault.

4.  On 3 February 1990, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him.

5.  Following consultation with counsel, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated a statement was submitted with his request, but no statement was available.

6.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The applicant also acknowledged he understood he had to apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wanted his less than honorable discharge reviewed.

8.  In his request for discharge, he indicated he submitted a statement in his own behalf.  However, the statement is not in the available records.

9.  On 6 February 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade, with a UOTHC discharge.

10.  On 1 March 1990, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year and 25 days of creditable active military service.  

11.  His DD Form 214 also shows the following:

* Item 25 (Separation Authority) – "AR 635-200, Chapter 10"
* Item 26 (Separation Code) – separation program designator (SPD) code "KFS"
* Item 27 (Reentry Code) – "RE-3"

12.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  There is no evidence in the available records indicating the applicant was discharged by reason of homosexuality.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  Army Regulation 635-5-1 (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.  Both the version of the regulation in effect at the time and the current version of the regulation provide for assigning the SPD code KFS to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The Department of the Army SPD/RE Code Cross Reference Table in effect at the time and the current version stipulate that RE code 3 is the proper code to assign members who are separated for chapter 10, for the Good of the Service-In lieu of Court-Martial under the provisions of Army Regulation 635-200 and who are assigned an SPD code of KFS. 

18.  The DADT policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay, or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to honorable, separation code be changed to JBK, and his RE code be changed to 1 was considered.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The record shows he was separated "for the good of service – in lieu of court-martial" and he was appropriately assigned an SPD code of KFS and RE-3 code based on the authority and reason for his separation.  

4.  Counsel asserts the applicant was separated for the commission of a homosexual act and points to the repeal of the DADT policy as the basis for relief.  However, there is no evidence in the available record and none is provided to show the applicant's discharge was based upon being a homosexual.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20120001118



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ABCMR Record of Proceedings (cont)                                         AR20110023382



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