BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120007389 


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 records to reflect the separation authority and narrative reason for separation under current standards.

2.  The applicant states his type of discharge is no longer allowed and the reason for his discharge is no longer applicable.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) on 30 April 1979 for a period of 3 years.  He completed training and he was awarded military occupational specialty 91A (Medical Specialist).

3.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal (1st Award), and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  He reenlistment in the RA on 10 November 1981 and he was assigned to
3rd Battalion, 6th Field Artillery, Fort Riley, KS.

5.  His record shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 September 1980 for disobeying a lawful order from a noncommissioned officer on 15 August 1980.

6.  On 17 May 1984, the applicant's command initiated separation proceedings against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 15-3a (engaged, attempted to engage in or solicited another to engage in homosexual acts).  Specifically, the commander stated the applicant admitted to being homosexual.  The immediate commander recommended approval with a general discharge.

7.  On 21 May 1984, the applicant acknowledged receipt of the separation notification memorandum.  He consulted with counsel and he was advised of the basis for the proposed separation action.  He waived consideration of his case by a board of officers, appearance before a board of officers, and the submission of a statement in his own behalf.

8.  On 14 July 1986, the immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 15-3a, due to admitted homosexuality.  His intermediate commander recommended approval.

9.  On 8 June 1984, the separation authority approved the proposed discharge action and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15, with service characterized as under honorable conditions.

10.  On 25 June 1984, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3a.  He completed 5 years, 1 month, and 26 days of creditable active service.  The DD Form 214 he was issued at the time shows in:
* 
Item 24 (Character of Service) – "Under Honorable Conditions"
* item 25 (Separation Authority) – "AR (Army Regulation) 635-200, para (paragraph) 15-3a"
* item 26 (Separation Code) – "JRA"
* item 27 (Reenlistment (RE) Code) – "RE-4"
* item 28 (Narrative Reason for Separation) – "Engaged, attempted to engage in or solicited another to engage in homosexual acts"

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

12.  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.

13.  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 Army Regulation 635-200, paragraph 15-3a, by reason of Homosexual Conduct (Acts).  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 narrative reason for separation.

14.  The Under Secretary of Defense for Personnel and Readiness memorandum, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, dated 20 September 2011, 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 "don't ask, don't tell" (DADT) or prior policies.

15.  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

16.  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.

17.  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.

18.  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.  Therefore, 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 25 June 1984 under the provisions of Army Regulation 635-200 by reason of homosexuality with a general, under honorable conditions discharge.  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.

2.  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.  There are no aggravating factors in the applicant's record.

3.  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 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:

	a.  voiding his current DD Form 214 for the period ending 25 June 1984, and

	b.  issuing him a new DD Form 214 for the period ending 25 June 1984 to show he was honorably discharged by reason of "Secretarial Authority," with an SPD code of "JFF" and an RE code of "RE-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)                                         AR20120007389



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ABCMR Record of Proceedings (cont)                                         AR20120007389



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