IN THE CASE OF:	   

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110024286 


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 that his general discharge under honorable conditions be upgraded to honorable.

2.  The applicant defers statements and submissions to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's record of service be considered on its own merit without regard to any sexual orientation or activity and that it be upgraded to honorable.  

2.  Counsel states that the ending of the Don’t Ask, Don't Tell policy makes such consideration appropriate.

3.  Counsel provides a virtually complete copy of the applicant's service record.

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 18 November 1986.  He completed training and was serving in Germany in pay grade E-4.

3.  On or about 5 September 1989, another Soldier made a sworn statement to the effect that the applicant had twice preformed fellatio upon him.

4.  The company commander advised the applicant that he was considering recommending separation for homosexuality.  He informed the applicant that he had the right to have his case heard by a board of officers, to appear before that board, and to be represented by counsel.  

5.  The applicant consulted with counsel, waived consideration by a board, and declined to submit a statement in his own behalf.  

6.  A psychiatric examination cleared the applicant for and recommended administrative separation.

7.  The chain of command recommended approval of the separation with a general discharge and the separation authority so directed.

8.  On 20 October 1989, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, chapter 15 for commission of homosexual acts.  He had 2 years, 11 months, and 3 days of creditable active duty service.

9.  On 1 August 1991, the Army Discharge Review Board denied the applicant's request to recharacterize the discharge to honorable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

11.  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 Don't Ask, Don't Tell (DADT) or prior policies.

12.  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" (SPD code JFF))
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

13.  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

14.  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.

15.  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 period 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.  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, and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed.

3.  There is no evidence in the available record of discreditable misconduct.  Accordingly, given the changes resulting from the termination of DADT the applicant's discharge should be changed and his RE code changed to a “1.” 

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 the Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for the period ending 20 October 1989 and issuing him a new DD Form 214 to show he 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." 




      _______ _   __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)                                         AR20110024286





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ABCMR Record of Proceedings (cont)                                         AR20110024286



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