IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001337 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry (RE) code of "1."

2.  The applicant states she wants this correction so that she may reenter military service.

3.  The applicant provides a copy of 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's records show she enlisted in the Regular Army on 17 January 2003.  She completed her initial training and was awarded military occupational specialty 98H (Morse Interceptor).
3.  On 3 February 2004, the applicant was notified by her immediate commander that discharge action was being initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15 for homosexual conduct.  The specific reason cited was her statement that she was homosexually oriented.

4.  On 3 February 2004, the applicant acknowledged notification of the proposed discharge action.  She was advised by consulting counsel of the basis for the contemplated separation action, the possible effects of such a discharge, and the rights available to her.

5.  The applicant waived her right to consideration of her case by a board of officers, personal appearance before a board of officers, and elected to submit a statement on her own behalf.  Her statement is in the available record, but it is illegible.

6.  On 3 February 2004, the applicant's battalion commander recommended that she be granted an honorable discharge.

7.  On 4 February 2004, the separation authority approved her discharge action and directed that her service be characterized as honorable.

8.  On 26 February 2004, the applicant was discharged accordingly.  She completed 1 year, 2 months, and 26 days of creditable active service.  Her 
DD Form 214 shows the authority for separation as Army Regulation 635-200, paragraph 15-3b, her separation program designator (SPD) code as JRB and an RE code of "4."

9.  Her record is void of any record of adverse counseling or disciplinary actions.

10.  Army Regulation 635-200, chapter 15, then in effect, provided general policies concerning homosexual conduct.  Paragraph 15-3b stated that a Soldier would be discharged if he or she made a statement indicating they were homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier had demonstrated that he or she was not a person who engaged in, attempted to engage in, had a propensity to engage in, or intended to engage in homosexual acts.

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 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 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 contends that her DD Form 214 should be corrected to show an RE code of "1."

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

3.  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 characterization of service changed.

4.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, her overall record of service merits 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 26 February 2004.

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 all Department of the Army records of the individual concerned be corrected by 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 26 February 2004.




      _______ _   __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)                                         AR20120001337



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001337



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1