IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120006778 


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, to change the narrative reason for her separation due to recent changes in law.  In addition, she requests a personal appearance before the Board. 

2.  The applicant states Don't Ask, Don't Tell (DADT) no longer exists.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Although the applicant has requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of her case without such an appearance.

2.  The applicant enlisted in the Connecticut Army National Guard on                  21 December 1995.  She entered active duty for training (ADT) on 21 January 1996.  

3.  On 31 January 1996, her immediate commander notified her of her intent to initiate separation action against her in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for homosexuality.  The discharge was specifically recommended for homosexual admission during her current term of service.  

4.  On 31 January 1996, the applicant acknowledged receipt of the commander's intent to separate her for homosexual admission.  She waived consult with legal counsel, and elected not to submit a statement on her own behalf.

5.  On 6 February 1996, the applicant's immediate commander initiated separation action against her in accordance with chapter 15 of Army Regulation 635-200 for homosexual admission during her current term of service.  The immediate commander remarked that the applicant made a spontaneous statement to her drill sergeant that she was a homosexual on 29 January 1996.

6.  On 14 February 1996, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission, and directed issuance of an entry level (uncharacterized) separation.

7.  She was discharged on 16 February 1996, after completing 26 days of net active service during this period.  The DD Form 214 (Certificate of Release or Discharge from Active Service) she was issued shows in:

* item 24 (Character of Service) - Uncharacterized
* item 25 (Separation Authority) - AR 635-200, paragraph 15-3b
* item 26 (Separation Code) - JRB
* item 27 (RE (Reentry) Code) - 4
* item 28 (Narrative Reason for Separation) - Homosexual Admission

8.  On 29 December 2009, the Army Discharge Review Board denied her petition for an upgrade of her discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve component.  Entry-level status of such a member of a Reserve component terminates (a) 180 days after beginning training if the Soldier is ordered to ADT for one continuous period of 180 days or more; or (b) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.  Specifically, individuals of the ARNG ordered to active duty who have completed less than 180 days of continuous active duty will have their service uncharacterized, even though they have completed IADT.
	b.  Chapter 15 at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s service. 

10.  DADT was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members' sexual orientation.  Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

11.  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, United States 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.

12.  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

13.  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


14.  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.

15.  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 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.  The applicant was discharged under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission.  She received a separation code of JRB and RE code of 4.  Her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time and the rights of the applicant were fully protected throughout the separation process. 

2.  The law has since been changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code,      RE code and, when appropriate, characterization of service changed.  

3.  In view of the changes in the law, it is now appropriate to issue her a new DD Form 214 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

4.  The applicant was discharged after completing 26 days of net active service while she was in an entry-level status.  This status required that her service be uncharacterized.  An uncharacterized discharge is neither positive nor negative.  It simply means the Soldier did not serve on active duty long enough to qualify for a specific characterization of service.  Therefore, there is no basis for changing the characterization of service shown on her 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 issuing her a new DD Form 214 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - 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)                                         AR20120006778



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006778



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1