IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20120003566 


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 undesirable discharge to an honorable discharge.

2.  The applicant defers his statement and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge from an undesirable discharge to a fully honorable discharge.

2.  Counsel states the applicant was discharged in 1954 under the military's ban on homosexuality.  He was categorized as a Class II homosexual and received an undesirable discharge.  However, the military has since changed its policy through the repeal of "Don't Ask, Don't Tell" and the sexual orientation has no more bearing on a Soldier's fitness for military service.  Counsel further argues:

* the applicant meets the criteria necessary to merit a change to his discharge characterization
* the current policy enhances current Soldiers' rights compared to those who served at the time the applicant did
* had the current policy been in place at the time of his discharge, the applicant would have received an honorable discharge
* his discharge was entirely based on the basis of violating the military's ban on homosexuality
* there were no aggravating factors related to his discharge which would have prevented him from receiving an honorable character of service

3.  Counsel provides:

* the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States)
* two medical statements
* a letter to the National Personnel Records Center
* a Request for Army Information
* Army Regulation 600-443 (Personnel – Separation of Homosexuals)
* Under Secretary of Defense memorandum, dated 28 January 2011, subject:  Repeal of Don't Ask Don't Tell and Future Impact on Policy
* Under Secretary of Defense memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code

CONSIDERATION OF EVIDENCE

1.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, the applicant provides his DD Form 214 which is sufficient for the Board to conduct a fair and impartial review of this case.

2.  The applicant's DD Form 214 shows he was inducted into the Army of the United States and entered active duty in New York City, NY, on 26 September 1952.  His most significant assignment was with the 541st General Supply Quartermaster Company.

3.  He was discharged on 12 May 1954 with an undesirable discharge by reason and authority of Army Regulation 615-365 (Personnel Separations – Discharge – Convenience of the Government) and Army Regulation 600-443.

4.  His DD Form 214 shows he completed 1 year, 7 months, and 17 days of creditable active service of which 1 year, 1 month, and 13 days was foreign service.  He had no lost time.

5.  Army Regulation 615-365, in effect at the time, prescribed criteria and procedures for the separation of personnel for the convenience of the government prior to expiration of their terms of service.

6.  Army Regulation 600-443, in effect at the time, prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army.  This regulation stated that homosexual personnel coming within the purview of the Department of the Army policy fall into several categories which may or may not overlap and would be more or less complicated by the facts and circumstances peculiar to the individual case.  A homosexual act – bodily contact between persons of the same sex actively undertaken or passively permitted by either or both parties – may fall under the following classifications.

	a.  Class I:  Those cases which involved accompaniment by assault or coercion as characterized by an act in or to which the other person involved did not willingly cooperate or consent or where the consent was obtained through force, fraud, or actual intimidation, thereby constituting the invasion of the rights of another, or any homosexual action with a child under the age of consent, whether the child cooperates or not.

	b.  Class II:  Those cases wherein true or confirmed homosexual personnel have engaged in one or more homosexual acts or where evidence supports proposal or attempt to perform an act of homosexuality and which does not fall into the category of Class I.  There is no distinction in the administrative handling of the cases of alleged participation in homosexual acts while a member of the Army based upon whether the role of a person in any particular action was active or passive.

	c.  Class III:  Those rare cases wherein personnel only exhibit, professe, or admit homosexual tendencies and wherein there are no specific, provable acts or offenses, or court-martial jurisdiction does not exist.  All persons who confess homosexual tendencies shall not necessarily be discharged merely on the basis of confession of homosexuality.

7.  Army Regulation 600-443 also states Class I requires mandatory trial by a general court-martial and Class II requires submission of a signed statement accepting an undesirable discharge, resignation for the good of the service in lieu of a signed statement (personnel who served at least 3 years), trial by a general court-martial (if the circumstances warrant), or referral to Headquarters, Department of the Army for disposition.

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

9.  The memorandum above 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" with a separation program designator (SPD) code of JFF
* characterization of service to honorable
* the reentry eligibility (RE) code to an immediately-eligible-to-reenter category

10.  For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:  (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there were no aggravating factors in the record, such as misconduct.

11.  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.

12.  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 complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulations 615-365 and 600-443 for homosexuality with an undesirable discharge.

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 for homosexuality should now have their reasons for discharge and characterizations of service changed.  In view of the foregoing, his service merits a change of the reason for discharge and an upgrade to fully honorable.

BOARD VOTE:

___X ___  ___X____  _  __X _     GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 with an honorable character of service by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1 effective 12 May 1954
* issuing him an Honorable Discharge Certificate, dated 12 May 1954



      __________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)                                         AR20120003566



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ABCMR Record of Proceedings (cont)                                         AR20120003566



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