IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023602 


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 her general discharge be upgraded to honorable and the narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be removed/changed.

2.  The applicant states:

* the entry "Engaged, attempted to engage in or solicited another to engage in homosexual act(s)" is unconstitutional and it has caused her a lot of grief
* this should not be public and on her public records for everybody to view
* laws and times have changed and she feels this should be taken off of her DD Form 214
* she was a great Soldier and proud to serve in the Army
* she had just reenlisted for another tour of duty when this happened
* the narrative reason for separation has caused her mental and emotional anguish for years and it still does each time she has to present this document to prove she was in the Army
* each time she shows her DD Form 214 she feels less than a woman, humiliated, embarrassed, ashamed and disgraced when applying for jobs or Department of Veterans Affairs assistance  

3.  The applicant provides her DD Form 214.



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 6 December 1982 for a period of 3 years.  She completed her training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  On 10 July 1985, she was honorably discharged for immediate reenlistment.  On 11 July 1985, she reenlisted for a period of 4 years.  

3.  On 11 March 1986, nonjudicial punishment (NJP) was imposed against the applicant for assault (pushing a private into a wall).

4.  On 2 July 1986, the applicant's command initiated separation proceedings against her under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15, for homosexuality.

5.  After consulting with counsel, she waived her rights, and elected to submit a statement in her own behalf; however, this statement is not available.

6.  On 8 July 1986, the separation authority approved the recommendation and directed the issuance of a general discharge.

7.  On 15 July 1986, the applicant was discharged under the provisions of Army Regulation 635-200 with a separation program designator (SPD) code of "JRA," a General Discharge Certificate, a character of service of under honorable conditions, and a reenlistment (RE) code of "4."  She completed 3 years, 10 months, and 12 days of total active service.  




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 (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.

9.  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

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 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.

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

3.  The NJP that she received for pushing a Soldier into a wall was noted.  However, it appears this misconduct was relatively minor, not sufficient to have made the commander consider separating her for misconduct, and appears not to have been an aggravating factor in the case (i.e., not related to her separation for homosexuality).

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

* character of service as "Honorable"
* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code to an immediately-eligible-to-reenter category "1"

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 voiding the previously issued DD Form 214 and issuing her a new DD Form 214 to show she 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 15 July 1986.




      _______ _ 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)                                         AR20110023602



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ABCMR Record of Proceedings (cont)                                         AR20110023602



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