BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120007844 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests change of the applicant's:

* reason for separation from "Unacceptable Conduct" to "Secretarial Authority"
* separation code from "JNC" to "JFF"
* reentry eligibility (RE) code from "NA" to RE-1J

2.  Counsel states:

	a.  After exemplary service as an enlisted medical specialist the applicant served in the U.S. Army Reserve (USAR), gained education and certification as a registered nurse, and re-entered active duty as a commissioned officer in the Army Nurse Corps.  His performance evaluations show he was an outstanding officer.

	b.  He was eliminated from the service for misconduct by acknowledged acts of homosexuality and conduct unbecoming an officer.  The charges were based upon a relationship with an enlisted member of the U.S. Navy.

	c.  Change of the reason is warranted because of the repeal of the Don't Ask, Don't Tell (DADT) policy.  He points to case law that he contends indicates there was really no separate offense of fraternization (apart from the homosexuality) unless that was proven separately from the homosexual behavior.

3.  Counsel provides copies of numerous service record documents.

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 served on active duty as an enlisted medical specialist from 1981 to 1986 and attained the rank/grade of sergeant (SGT)/E-5.  After achieving a degree and certification as a registered nurse he accepted a commission as a second lieutenant in the Army Nurse Corps and a concurrent call to active duty on 21 June 1991.  He was promoted to first lieutenant on 30 December 1992.

3.  In August 1994, apparently as the result of statements made by the Sailor involved, the applicant was required to show cause before a Board of Inquiry (BOI) as to why he should not be eliminated from the service for admitted homosexual acts and conduct unbecoming an officer.

4.  The BOI recommended elimination.  An Army Board for Review of Eliminations recommended elimination and the Commanding General, U.S. Total Army Personnel Command directed an honorable discharge.

5.  On 9 November 1995, the applicant was discharged under the provisions of Army Regulation 635-100 (Personnel Separations- Officer Personnel), paragraph 5-11 by reason of unacceptable conduct.  The DD Form 214 he was issued at the time shows in:

* item 26 (Separation Code) the entry JNC
* item 27 (RE code) the entry "NA" (not applicable)
* item 28 (Narrative Reason for Separation) the entry "Unacceptable Conduct"
6.  Army Regulation 635-100, paragraph 5-11 provided that while not all inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes elimination of an officer due to misconduct, moral or professional dereliction, or in the interest of national security.  The listing included homosexuality and conduct unbecoming an officer.

7.  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 Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under Don't Ask, Don't Tell (DADT) or prior policies.

8.  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

9.  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

10.  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.

11.  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 period 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.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states for item 27, Army Regulation 601-210 (Active and Reserve Components (RC) Enlistment Program) determines RA and USAR reentry eligibility and provides regulatory guidance on the RE codes.  These codes are not applicable to officers, USMA cadets who fail to graduate or enter USMA from active duty status, or to RC soldiers being separated for other than cause.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  The characterization of his discharge was also 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 for homosexuality should now have their reason for discharge and characterizations of service changed.

3.  Aside from the homosexual acts, there is no evidence on any other misconduct.  This absence of any other misconduct argues strongly in favor of applying the current standard to the applicant's case.

4.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, his overall record of service merits changing his SPD code and his narrative reason for separation as requested.

5.  The applicant was assigned an RE code of "NA."  In accordance with Army Regulation 635-5, RE codes are not applicable to officers.  As such, the entry "NA" was then and is now the correct entry.  Therefore, there is no basis for granting this portion of the applicant's requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), on       9 November 1995.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE code to "1J" or any other RE code.



      ___________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)                                         AR20120007844



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ABCMR Record of Proceedings (cont)                                         AR20120007844



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