IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20110024145 


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 discharge under other than honorable conditions be changed to an honorable discharge due to recent changes in law.

2.  The applicant states she was discharged based on her sexuality, there was no negative conduct. 

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.  The applicant's records show she enlisted in the Regular Army on 30 May 1980, after having completed her training as a member of the Reserve components.  She held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade she attained while serving on active duty was private/E-2.  However, she held the rank/grade of private/E-1 at the time of her separation.

3.  Her records show she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the offenses indicated:

	a.  on 3 June 1980, for failing to go to her appointed place of duty; and

   b.  on 30 October 1980, for using disrespectful language towards her superior noncommissioned officer and for leaving her appointed place of duty.

4.  Her records contain Summary Court-Martial Order Number 2, dated             24 January 1981, issued by Headquarters, 522nd Military Intelligence Battalion, 2nd Armored Division, Fort Hood, TX.  The evidence shows the applicant was found guilty by a summary court-martial on 24 January 1981, of violating the UCMJ by using disrespectful language towards her first sergeant, a superior noncommissioned officer, and two instances of disobeying a lawful order.

5.  On 10 February 1981, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct.  The discharge was specifically recommended for homosexual acts during her current term of service.  

6.  On 17 February 1981, the applicant acknowledged receipt of the commander's intent to separate her for misconduct.  She consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her.  She waived consideration of her case by a  board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement on her own behalf.

7.  The applicant indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her.  She further understood that as a result of the issuance of a discharge under other than honorable conditions, she could be ineligible for many or all benefits as a veteran under Federal and State laws.

8.  The applicant's immediate commander initiated separation action against her in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to homosexual acts during her current term of service.  The immediate commander remarked that the applicant was counseled on two occasions and recommended a waiver of further counseling because the applicant was obviously resisting all attempts to be rehabilitated.  

9.  On 26 March 1981, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – homosexual act; moral or professional dereliction, and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  She was discharged on 1 April 1981.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – homosexual act; moral or professional dereliction, with service characterized as under other than honorable conditions.  This form further shows she completed a total of 10 months and 1 day of creditable active military service during this period with 2 days of lost time.

11.  On 7 July 1982, the Army Discharge Review Board denied her petition for an upgrade of her discharge.
  
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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.

	c.  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.

13.  The "Don't Ask, Don't Tell" 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.

14.  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.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the Reentry Eligibility code to an immediately-eligible-to-reenter category

15.  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

16.  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.

17.  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 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 those 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.

18.  On 22 August 2012, the applicant was asked if she would accept a change to the narrative reason for her separation to "misconduct" if the Board believed that her narrative reason for separation should be changed but that it should be changed to conform to current standards.  She stated she would like to continue with the review.  She stated she never harmed anyone but simply had a sexual preference that some people did not understand or like and she now feels confident at this point in her life that she will prevail.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her discharge under other than honorable conditions should be upgraded to an honorable discharge due to recent changes in the law.

2.  Although DADT was repealed effective 20 September 2011, her discharge occurred prior to the DADT policy and her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of her discharge was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

3.  Her record of service shows a history of misconduct which includes more than one instance of violation of the UCMJ, a court-martial, and two days of lost time.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  She was discharged for misconduct - homosexual act; moral or professional dereliction; however, her admission of homosexuality does not invalidate her prior acts of misconduct.  

4.  Therefore, in view of the foregoing, she is not entitled to the requested relief; however, based on the governing law in effect today, her narrative reason for  separation will be changed to read "misconduct." 






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the narrative reason for separation on her DD Form 214 to read "misconduct."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the board recommends denial of so much of the application that pertains to upgrading her discharge due to recent changes in law.



      _______ _   __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)                                         AR20110024145





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ABCMR Record of Proceedings (cont)                                         AR20110024145



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