IN THE CASE OF:	  

		BOARD DATE:  11 October 2012

		DOCKET NUMBER:  AR20120007040 


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 under other than honorable conditions discharge to a general discharge.  

2.  The applicant states he was kicked out for being homosexual.  He only had two Article 15s in his entire military time.  He wonders why the Army reenlisted him if they were going to kick him out anyway.  In any case, since "Don't Ask Don't Tell" has been repealed, he asks for the upgrade.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty
* DD Form 215 (Correction to DD Form 214)

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 show he enlisted in the Regular Army on 6 April 1983 and he held military occupational specialty 64C (Motor Transport Operator). 

3.  He was awarded or authorized the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Good Conduct Medal.  

4.  He executed a reenlistment in the Regular Army on 4 April 1986 and he was assigned to the 1st Battalion, 7th Air Defense Artillery, Fort Bliss, TX.

5.  His records show he was frequently counseled by members of his chain of command for various infractions, including:

* Multiple instances of missing formation
* Disobeying a lawful order
* Being absent from his appointed place of duty

6.  His records also show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 21 April 1986, being absent from his appointed place of duty
* 8 May 1986, soliciting another Soldier to commit sodomy

7.  On 2 June 1986, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his record of NJP.  The applicant was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the appropriate authority.  

8.  On 8 July 1986, the applicant's command initiated separation proceedings against him under the provisions of chapter 15 of Army Regulation 635-200 (Personnel Separations) due to homosexuality.  Specifically, the commander stated the applicant solicited another Soldier to commit sodomy on or about 25 March 1986.  The immediate commander recommended an under other than honorable conditions discharge. 

9.  On 8 July 1986, the applicant acknowledged receipt of the separation notification memorandum.  He consulted with counsel and he was advised of the basis of the proposed separation action.  He waived consideration of his case by an administrative board, appearance before an administrative separation board, and the submission of a statement in his own behalf.

10.  On 14 July 1986, the immediate commander initiated separation action against the applicant under the provisions of chapter 15, Army Regulation      635-200 due to homosexuality.  His intermediate and senior commanders recommended approval.  

11.  On 8 August 1986, the separation authority approved the proposed discharge action and directed that the applicant be discharged under the provisions of chapter 15 of Army Regulation 635-200, by reason of homosexuality admission with his service characterized as under other than honorable conditions.  

12.  On 12 September 1986, the applicant was discharged under the provisions of Army Regulation 635-200.  He completed 3 years, 5 months, and 7 days of total active service.  His DD Form 214 shows in:

* Item 24 (Character of Service) – "Under Other Than Honorable Conditions"
* item 25 (Separation Authority) – "Chapter 15, Army Regulation 635-200"
* item 26 (Separation Code) – "JRA"
* item 27 (Reenlistment (RE) Code) – "4"
* item 28 (Narrative Reason for Separation) – "Solicited Other to Engage in Homosexual Acts"   

13.  In October 1988, the Army Discharge Review Board denied his petition for an upgrade of his discharge.  However, during the review, a discrepancy was found n the narrative reason for separation.  Accordingly, on 12 October 1988, he was issued a DD Form 215 that changed his narrative reason for separation to "Engaged, Attempted to Engage in, or Solicited Another to Engage in Homosexual Act(s)." 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribes that SPD code JRA is the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated 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 Separation to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* Characterization 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 and 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 BCM/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 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 evidence of record shows the applicant was discharged on 12 September 1986 under the provisions of Army Regulation 635-200 by reason of homosexuality with an under other than honorable conditions 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 due to homosexuality should now have their reason for discharge and characterizations of service changed.  Since there were no aggravating factors in the record, 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 that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for the period ending 12 September 1986 and the related DD Form 215 and issuing him a new DD Form 214 to show he was 


discharged with an honorable characterization of service 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)                                         AR20120007040





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ABCMR Record of Proceedings (cont)                                         AR20120007040



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