IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120004854 


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, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he worked for a bigoted sergeant who harassed and punished him for no reason.  He became an expert at digging 6 X 6 holes.  He goes on to state that he complained to his captain but it did no good because the unit was being transferred to Korea.  He further states that the sergeant had a buddy in the Criminal Investigation Division (CID) and he was given the option of accepting a discharge or being court-martialed and doing time in Leavenworth, Kansas.  He continues by stating that at the time he had a wife and a new baby. He was terrified at the time and he signed whatever they gave him to sign; however, he is not now nor has he ever been a homosexual and he believes that his discharge should be upgraded to fully honorable discharge based on the current Don't Ask, Don't Tell (DADT) policy.

3.  The applicant provides no additional documents with his application.

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 military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant was married when he enlisted in Miami, Florida on 8 July 1955 for a period of 3 years.  He completed basic training at Fort Jackson, South Carolina and advanced individual training as a message center clerk at Fort Gordon, Georgia.  He was transferred to Fort Riley, Kansas for his first and only duty assignment on 4 February 1956.

4.  He was initially assigned to a field artillery battalion as a message center clerk and 4 months later he was reassigned to an anti-aircraft artillery battalion for duty as an ammunition handler.

5.  Meanwhile, in March 1956 he submitted a request for a compassionate reassignment because his wife was experiencing a difficult pregnancy while in her 7th month.  She had heart disease and was of general poor health.  The attending physician recommended that she be near her family in Detroit for assistance.  The applicant’s request was disapproved by Headquarters, 5th Army because there was no appropriate vacancy in the area he requested.

6.  A review of the available evidence shows that on 21 May 1956 Army officials notified the applicant’s congressional representative that the applicant’s request for a compassionate reassignment had been disapproved and the applicant was now applying for a hardship discharge.  The available evidence also shows that at the time the applicant applied for a compassionate reassignment his commander indicated that his character and efficiency were “Excellent” and he had no record of disciplinary actions.

7.  On 20 March 1956, he was referred to mental hygiene for an evaluation of his profile.  The examining psychiatrist opined that there was no evidence of psychosis or neurosis and the applicant had a character disorder of the passive-aggressive type.  He diagnosed the applicant as having a passive-aggressive personality, chronic, moderate.  He also opined that if the applicant did not get his compassionate transfer his efficiency would drop to the point where it might be necessary to administratively separate him.

8.  On 26 May 1956, the applicant was referred to mental hygiene by the CID for investigation of homosexuality.  It appears that the applicant’s name came up in an investigation and the applicant had been reprimanded by his commander the previous month for hypnotizing Soldiers in the barracks.  The applicant denied any homosexual contact and indicated that while he had some homosexual experiences of an oral nature prior to enlistment, he had none while in the service or since being married.  He did indicate that his sexual relations with women bordered on a perverse nature.

9.  The examining psychiatrist went on to state that there was no evidence or psychosis or neurosis and that the applicant was attempting to get out of the Army any way he could.  He also indicated that it was difficult to tell when the applicant was telling the truth, but he believed the applicant was a homosexual and should be separated from the service for homosexuality under the provisions of Army Regulation 635-89.

10.  All of the facts and circumstances surrounding his administrative discharge are not present in the available evidence.  However, the available evidence does contain an undated document showing the applicant submitted a request for discharge under the provisions of Army Regulation 635-89 and Army Regulation 635-205 for the convenience of the government. 

11.  The available records also contain a DD Form 214 (Report of Separation from the Armed Forces of the United States) which shows that, on 13 July 1956, he was discharged under the provisions of Army Regulation 635-205 and Army Regulation 635-89, for homosexuality, with an undesirable discharge.  However, his DD Form 214 shows he was assigned a separation program number (SPN) of “29” which was the SPN for Sole Surviving Son.  He had served 1 year and 5 days of active service.

12. The available evidence does not show 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, then in effect, set forth the policies and procedures for separation of Soldiers for homosexuality.  It stated personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity, and their prompt separation was mandatory.  It stated enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate could be issued when an individual had been awarded a personal decoration or if warranted by the particular circumstances in a given case.

14.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 2 of this regulation provides that the separation of enlisted personnel for the convenience of the Government and the type of discharge are the prerogative of the Secretary of the Army and will be affected only by his authority.

15.  On 20 September 2011, the Under Secretary of Defense announced the repeal of the law commonly known as “Don’t Ask, Don’t Tell” (10 U.S.C. Section 654) and further announced that sexual orientation would no longer serve as a bar to service in the DOD. 

16.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of 10 U.S.C., 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.

17.  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

18.  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 available evidence, 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 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 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.

21.  Army Regulation 635-200, chapter 5, provides, in pertinent part, that the Secretary of the Army may approve the discharge of Soldiers for the convenience of the government.  An Honorable, General, or uncharacterized discharge may be directed under this separation authority.  A separation code of “JFF” denoted separation under “Secretarial Authority.” 

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was accomplished in accordance with regulations then in effect with no violations of any of his rights.  Accordingly, the type of discharge was appropriate under the circumstances.

2.  It also appears that the applicant was discharged based on his admission to the psychiatrist that he had homosexual encounters prior to enlisting.  However, it was also noted that the applicant was attempting to get out of the service anyway he could due to the personal problems he was experiencing and the psychiatrist noted that nothing the applicant said could be trusted. 

3.  There does not appear to be any evidence showing that the applicant ever admitted to being homosexual or to participating in any homosexual acts since entering the service.  Additionally, the available evidence shows no disciplinary actions being taken against him during his service.

4.  Further, 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 characterizations of service changed.

5.  It appears his overall record of service merits a characterization of service upgrade to fully honorable.
6.  Accordingly, in view of the current standards for discharges issued for homosexuality, it would now be appropriate to correct the inequity and to issue the applicant an honorable discharge under secretarial authority and issue him a SPN of “JFF” instead of SPN 29 that is currently reflected on his DD Form 214.

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:

   a.  Voiding his DD Form 214, dated 13 July 1956, under the provisions of Army Regulation 635-205 and Army Regulation 635-89, for homosexuality;

   b.  Issuing him a new DD Form 214 showing he was honorably discharged, on the same date, under the provisions of Army Regulation 635-200, chapter 5, due to Secretarial Authority, and assigning him a separation code of “JFF” and an RE Code of “1”; and  

   c.  Issuing him an Honorable Discharge Certificate, dated 13 July 1956.



      _______ _   __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)                                         AR20120004854



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ABCMR Record of Proceedings (cont)                                         AR20120004854



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