IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120005511 


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 his narrative reason for separation. 

2.  The applicant states his request is based on the new "Don't Ask, Don't Tell" (DADT) policy.  The law stipulates that service members will no longer have the word homosexual on their discharge document.  Since the Army changed the regulations that were previously used to separate and code homosexual conduct as a basis for separation he believes he is eligible to have his changed too. 

3.  The applicant provides a copy of Army Directive 2011-01 (Repeal of DADT).

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 enlisted in the Regular Army on 1 October 1963 and he held military occupational specialty 111.00 (Light Weapons Infantryman).  He was honorably discharged on 21 December 1964 for the purpose of immediate reenlistment.  

3.  He reenlisted on 22 December 1964 and subsequently served in Korea from 27 April 1965 to 27 May 1966.  Upon completion of his Korea tour he was reassigned to Fort Rucker, AL.

4.  In or around March 1966, agents of the U.S. Army Criminal Investigation Division (CID), Korea, investigated the applicant for homosexual activities.  The investigation concluded the applicant committed sodomy during December 1962, June 1963, and February 1964.  

5.  On 25 April 1967, 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's condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to render him unsuitable for further military service.  His condition was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification.  

	b.  His diagnosis was that of sexual deviate; homosexual type; overt; chronic; manifested by admitted, repeated overt homosexual acts. 

6.  On 15 May 1967, 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 repeated overt homosexual acts.  

7.  On 15 May 1967, 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 undesirable 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. 

8.  On 10 May 1967, the immediate and intermediate commanders recommended the applicant be discharged for unfitness/unsuitability under the provisions of Army Regulation 635-89, due to the applicant's homosexual acts.  Both commanders recommended a general discharge. 

9.  On 10 May 1967, 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 7 June 1967, the applicant was discharged accordingly.

10.  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 other than honorable conditions characterization of service.  He completed a total of 3 years, 8 months, and 7 days of creditable active service.  This form also shows he was assigned separation program number (SPN) 257 (unfitness – homosexual acts). 

11.  On 26 July 1968, the Army Discharge Review Board (ADRB) determined he was properly discharged.  Accordingly, it denied his petition for an upgrade of his discharge. 

12.  On 17 June 1977, the applicant was notified that the ADRB considered his request under the DOD Special Discharge Review Program (SDRP) and directed that his undesirable discharge be upgraded to a general discharge under honorable conditions.  Accordingly, the applicant was reissued a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under honorable conditions.

13.  On 7 June 1978, the applicant was notified that the ADRB reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, the Board determined the applicant qualified for an upgrade under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was affirmed.  The applicant was issued a DD Form 215 (Correction to the DD Form 214) to reflect this action.

14.  On 25 May 1990, in response to his petition, dated 29 June 1988, for an upgrade of his affirmed general discharge to an honorable discharge, the ABCMR granted relief in the form of an honorable discharge.  

15.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that reflected his "honorable" character of service.  This form also shows in:

* item 25 (Separation Authority) – "Title 10, U.S. Code, Section 1552" and "Paragraph 14-33A (Homosexual), Army Regulation 635-200 (Enlisted Separations)
* item 26 (Separation Code) – "JKC"
* item 27 (Reentry Code) – RE-3
* item 28 (Narrative Reason for Separation) – "Secretarial Authority and Misconduct – Homosexual Acts"

16.  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. 

17.  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's) 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.

18.  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 eligibility (RE) code to an immediately-eligible-to-reenter category

19.  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

20  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.

21.  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 7 June 1967 under the provisions of Army Regulation 635-89 by reason of homosexuality with an under other than honorable conditions discharge after an investigation determined he had committed homosexual acts. 

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.  His character of service was upgraded to general under the DOD SDRP and was later affirmed upon re-review.  Additionally, his general character of service was later upgraded to fully honorable by the ABCMR.  However, his narrative reason for separation remained "homosexuality" with corresponding separation and RE codes. 

4.  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.  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 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 honorably discharged effective 7 June 1967 by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1.



      __________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)                                         AR20120005511



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ABCMR Record of Proceedings (cont)                                         AR20120005511



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