IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110025049 


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, reconsideration of her previous application for a change in her reentry (RE) code.  She submits a new request to change her uncharacterized discharge. 

2.  She states Don't Ask, Don't Tell (DADT) is no longer in force.  Now that she has matured, she would like to enlist again, but she cannot due to the RE code she was assigned.  Her previous attempt to have the correction made failed because DADT was still in effect.

3.  She provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013407 on 8 January 2008.

2.  The applicant enlisted in the Regular Army on 10 February 2004.  She was discharged on 6 April 2004 after completing 1 month and 27 days of net active service.

3.  The complete facts and circumstances of her discharge are not available for review.  Her DD Form 214 shows in:
* item 24 (Character of Service) - Uncharacterized
* item 25 (Separation Authority) - Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 15-3b
* item 26 (Separation Code) - JRB
* item 27 (RE Code) - 4
* item 28 (Narrative Reason for Separation) - Homosexual Admission

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 describes the different types of characterization of service.  It states an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

	b.  Chapter 15 of the version in effect at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions would be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge was to reflect the character of the Soldier’s service.

5.  DADT was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members' sexual orientation.  Under that policy, service members could 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.

6.  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, United States 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.

7.  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 RE code to an immediately-eligible-to-reenter category

8.  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

9.  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.

10.  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 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.  The applicant was discharged under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission.  She received a separation code of JRB and RE code of 4.  In the absence of evidence showing otherwise, it is presumed her discharge proceedings were conducted in accordance with law and regulations in effect at the time and that her rights were protected throughout the discharge process.

2.  The law has since been changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code, RE code and, when appropriate, characterization of service changed.  

3.  In view of the changes in the law, it is now appropriate to issue her a new DD Form 214 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

4.  She was discharged while she was in an entry-level status.  This status required that her service be uncharacterized.  An uncharacterized discharge is neither positive nor negative.  It simply means the Soldier did not serve on active duty long enough to qualify for a specific characterization of service.  There is no basis for changing the characterization of service shown on her DD Form 214.

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 partial amendment of the ABCMR’s decision in Docket Number AR20070013407, dated 8 January 2008.  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 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

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 her uncharacterized discharge.



      _______ _   _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)                                         AR20110025049





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110025049



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1