IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120002475 


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 upgrade of his under other than honorable conditions discharge. 

2.  The applicant states based on the new Don't Ask - Don't Tell (DADT) policy, his discharge should be upgraded.  During his military service, his actions were deemed inappropriate.  As a result of this action and the characterization of service, he has been denied due process and his life has been affected.  Prior to this incident, his military service was exemplary.  

3.  The applicant did not provide any 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.  Having had prior service, the applicant's records show he enlisted in the Regular Army for 6 years on 8 April 1960.  

3.  He served in Germany from September 1960 to January 1964 and Vietnam from August 1965 to March 1966.

4.  On 7 February 1966, he underwent a psychiatric evaluation that determined he was mentally responsible and able to distinguish right from wrong and adhere to the right.  The psychiatric report states:

	a.  The applicant was first homosexually seduced at age 16.  He denied any subsequent contacts until 1955 when at Fort McClellan, AL, he assumed the passive role of fellatio.  While stationed in Germany between 1960 and 1963, he had fellatio performed on him at a frequency of perhaps every two months.  In 1963, he was seen psychiatrically because of allegations of homosexuality made by two other enlisted men.  He was not diagnosed as homosexual then.

	b.  He stated that he had assumed an active role in fellatio three times, the first was at Fort Campbell, KY, in 1964 after he had been drinking.  He subsequently denied any contact until December 1965 when he was again an active partner in fellatio.

	c.  His diagnosis was that of passive-aggressive personality with strong homosexual tendencies.  He was recommended for separation.

5.  On 8 February 1966, the applicant was notified by his immediate commander that discharge action was being initiated against him for unfitness/unsuitability (homosexuality) under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).  The immediate commander cited the specific reasons as the applicant's incidents of a discreditable nature that had a very demoralizing effect on the unit and its efficiency.  He recommended an under other than honorable conditions discharge. 

6.  On 8 February 1966, the applicant acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  He waived consideration of his case by a board of officers and elected not to submit a statement. 

7.  On 8 February 1966, the immediate commander recommended the applicant be discharged for unfitness/unsuitability under the provisions of Army Regulation 635-89, due to the applicant's homosexual tendencies.  In the request, the commander stated the applicant's conduct had been unsatisfactory and his efficiency was satisfactory.  

8.  On 21 February 1966, his intermediate and senior commanders recommended approval of his discharge for unfitness/unsuitability (homosexuality) under the provisions of Army Regulation 635-89.

9.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he had “excellent” conduct and efficiency ratings during the period 20 June 1958 to 16 August 1965 and a "poor" conduct and a "fair" efficiency rating between 17 August 1965 and date of discharge. 

10.  On 3 March 1966, the separation authority approved his discharge for unfitness/unsuitability (homosexuality) under the provisions of Army Regulation 635-89 and directed the issuance of an Undesirable Discharge Certificate.  On 15 March 1966, the applicant was discharged accordingly.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged by reason of homosexuality under the provisions of Army Regulation 635-89 with an under honorable conditions characterization of service.  He completed 5 years, 11 months, and 6 days of creditable active service.  This form also shows he was assigned SPN (Separation Program Number) 257 (Unfitness - Homosexual Acts). 

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation states, in pertinent part, that Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 16 years) during military service.  Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate. 

14.  Army Regulation 635-200 (Enlisted Separations), which superseded Army Regulation 635-89, sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 5 (Discharge for Homosexual Conduct) of Army Regulation 635-200 states that, when the sole basis for separation is homosexual conduct, a discharge under other than honorable conditions may be issued only if there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act:  (1) by using force, coercion, or intimidation; (2) with a person under 16 years of age; (3) with a subordinate in circumstances that violate customary military superior-subordinate relationships; (4) openly in public view; (5) for compensation; (6) aboard a military vessel or aircraft; or (7) in another location subject to military control under aggravating conditions noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.  This regulation also states that, in all other cases, the type of discharge will reflect the character of the Soldier’s service.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  

15.  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.

16.  The memorandum above 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" with a Separation Program Designator (SPD) code of JFF
* characterization of the service to honorable
* the (Reentry) RE code to immediately-eligible-to-reenter category

17.  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

18.  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.

19.  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 period.  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 evidence of record shows the applicant was discharged on 15 March 1966 under the provisions of Army Regulation 635-89 by reason of homosexuality with an under other than honorable conditions discharge after an examination determined he had homosexual tendencies.

2.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing 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 due to homosexuality should now have their reason for discharge and characterizations of service changed.

4.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 him a new DD Form 214 to show he was discharged effective 15 March 1966 with an honorable characterization of service, by reason of Secretarial Authority with an SPD of JFF, and an RE code of 1
* Issuing him an Honorable Discharge Certificate, dated 15 March 1966, in lieu of the Undesirable Discharge Certificate he now holds



      _______ _  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)                                         AR20120002475



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002475



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1