IN THE CASE OF: 

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120003368 


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 an upgrade of his discharge.

2.  The applicant states his request is based on the repeal of "Don’t Ask, Don't Tell (DADT)."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 15 January 1985.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 5 April 1983 for a period of 4 years.

2.  Sergeant First Class B_____, his first sergeant, submitted an undated Memorandum for Record that includes the following:

	a.  On or about 13 November 1984, the applicant admitted to being a homosexual.  This statement was made of his own free will.

	b.  He was asked if his statement was due to recent reassignment orders, which he was displeased with, and he stated it was not.

	c.  He stated he had been a homosexual for some time and just decided to come forward with it.

3.  On 14 November 1984, he submitted a sworn statement in which he indicated:

	a.  Before entering the service he had no sexual encounters with members of his own sex.

	b.  Four months ago, he was approached by a homosexual and it was the first time he succumbed to the temptation.  

	c.  He could no longer deny the possibility of his homosexuality.  He began to approach others, some accepted, and others did not.

	d.  About a month ago, he met someone and the shadow of doubt was lifted.  It was difficult to think of leaving for a new duty station knowing the person he needed would remain behind.

4.  On 19 November 1984, his commander notified him that he was recommending his discharge under the provisions of paragraph 15-3 of Army Regulation 635-200 (Personnel Separations).  The specific basis for his recommendation was the applicant engaged in, attempted to engage in, and solicited another to engage in homosexual acts.  The commander recommended that the applicant receive a general discharge under honorable conditions.

5.  The commander advised the applicant of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers

6.  The applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 15 of Army Regulation 635-200 for homosexuality.  He waived consideration by a board of officers and waived a personal appearance.  He stated that he was not submitting a statement in his own behalf and he waived counsel.  

7.  The applicant also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

8.  On 19 December 1984, the applicant's commander recommended the applicant's discharge under the provisions of paragraph 15-3a of Army Regulation 635-200 (Personnel Separations), due to homosexuality.

9.  On 11 January 1985, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

10.  On 15 January 1985, he was discharged.  His DD Form 214 shows in:

* Item 24 (Character of Service) - Under Honorable Conditions (General)
* Item 25 (Separation Authority) – Army Regulation 635-200, Paragraph 
15-3a
* Item 26 (Separation Code) - JRA
* Item 27 (Reenlistment Code) - RE (reentry eligibility) "4"
* Item 28 (Narrative Reason for Separation) - Engage, attempted to engage in, or solicited another to engage in homosexual act(s)

11.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There are no instances of nonjudicial punishment or courts-martial in his records.  

12.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  



	a.  The above regulation showed that the SPD code of "JRA" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Engaged, attempted to engage in, or solicited another to engage in homosexual act(s)."  

	b.  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 15-3a.

15.  Additionally, the SPD/RE Code Cross Reference Table establishes an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for this reason.

16.  The Under Secretary of Defense for 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 (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies.

17.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* narrative reason for discharge to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

18.  For the above corrections/amendments 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

19.  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.

20.  The memorandum also recognized that although B CM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, 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 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.

DISCUSSION AND CONCLUSIONS:

1.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own sworn statement that he was a homosexual, had engaged in homosexual acts, and approached others for the same.  There is no evidence of a further finding that he was not a homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

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 RE code changed.

4.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in his records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue him a new DD Form 214 with the characterization as honorable, an SPD code of "JFF," an RE code of "1," and a narrative reason for separation as Secretarial Authority.

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 the individual a new DD Form 214 changing the following items in:

* Item 24 enter Honorable
* Item 25 enter "Regulation 635-200, Paragraph 5-3 of Army"
* Item 26 enter the SPD code of "JFF"
* Item 27 enter an RE code of "1"
* Item 28 enter "Secretarial Authority"




      _______ _  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)                                         AR20120003368



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ABCMR Record of Proceedings (cont)                                         AR20120003368



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