BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120008940 


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 amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the following:

* separation authority
* narrative reason for separation
* separation code
* reentry code 
* Reserve obligation termination date

2.  He states he is making this request based on the repeal of the "Don't Ask, Don't Tell (DADT)" Act. 

3.  The applicant provides his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the delayed entry program (DEP) of the U.S. Army Reserve (USAR) for a period 8 years on 24 January 1987.  He was discharged from DEP status and enlisted in the Regular Army (RA) on 18 March 1987 for 
4 years.  After completion of training, he served in military occupational specialty 11B (Infantryman). 

2.  His record contains an Administrative Memorandum of Reprimand (MOR), dated 3 October 1988, for dereliction of duty.  The administering officer indicated the MOR was administrative in nature and was not imposed as punishment under the provisions of Article 15, Uniform Code of Military Justice.  He was presented the MOR and he chose not to make a statement.  The MOR was filed in his Military Personnel Records Jacket for 1 year.  

3.  A Report of Mental Status Evaluation, dated 30 January 1990, shows he was seen on four separate occasions at the Psychiatry and Neurology Clinics for an underlying conflict with sexual identification and possible homoerotic trends.  The applicant affirmed bi-sexual experiences prior to enlistment but was reluctant to comment on his then-current sexual behavior.  

4.  On 9 March 1990, the applicant's commander notified the applicant that he was recommending that the applicant be discharged under the provisions of paragraph 15-3 of Army Regulation 635-200 (Enlisted Personnel - Personnel Separations).  The specific basis for his recommendation was the applicant openly admitted that he desired to engage in sexual activities with other men.  The commander recommended that the applicant receive a general discharge under honorable conditions.

5.  The commander advised the applicant of his right to:

* have his case considered by an administrative separation board
* appear in person before the board
* submit statements in his own behalf
* be represented by counsel
* waive any of the above rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge action and request his case be presented before an administrative separation board

6.  The applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 15, Army Regulation 635-200.  He waived consideration of his case by an administrative separation board and a personal appearance.  He also waived further counsel and the opportunity to submit a statement in his own behalf.  

7.  Additionally, the applicant acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

8.  On 9 March 1990, his commander recommended the applicant's discharge under the provisions of paragraph 15-3b, Army Regulation 635-200, due to his expressed desire to engage in sexual activities with other men.
9.  On 12 March 1990, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  Accordingly, on 4 April 1990, he was discharged.  

10.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  The ADRB upgraded his characterization of service to fully Honorable and reissued him a 
DD Form 214 which reflected this change. 

11.  The applicant's DD Form 214 currently shows in:

* item 6 (Reserve Obligation Termination Date) – 00 00 00
* item 24 (Character of Service) – Honorable
* item 25 (Separation Authority) – Army Regulation 635-200, Paragraph 
15-3b
* item 26 (Separation Code) – "JRB"
* item 27 (Reentry Code) – RE (Reentry Eligibility Code) "4"
* item 28 (Narrative Reason for Separation) – Admission of Homosexuality or Bisexuality

12.  There is no evidence any homosexual acts occurred by use of force, coercion, or intimidation.  There are also no instances of nonjudicial punishment or courts-martial convictions in his records.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

14.  Army Regulation 635-5 (Separation Documents) provides instructions for the preparation of the DD Form 214.  It states for item 6, enter the completion date of the statutory military service obligation (MSO) incurred by a Soldier on initial enlistment in the Armed Forces.  A Soldier who enlisted on or after 1 June 1984 has an MSO period of 8 years.  For a Soldier discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter “00 00 00.”

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  

	a.  The above regulation showed the SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Admission of Homosexuality or Bisexuality."  

	b.  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 15-3b.

16.  Additionally, the SPD/RE Code Cross Reference Table established an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for this reason.

17.  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.

18.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* narrative reason for discharge to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

19.  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
* 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/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 those 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.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own admission of a desire to engage in sexual activities with other men.  There is no evidence of a further finding that he did not have these homosexual/bisexual desires.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

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 for homosexual admission should now have their reason for discharge and RE code changed.

4.  There is no evidence that any homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in his records that would indicate misconduct.

5.  He applied to the ADRB for an upgrade of his general discharge and he was granted an honorable discharge. 

6.  In view of the above, it would now be appropriate to issue him a new DD Form 214 with an SPD code of "JFF," an RE code of "1," and a narrative reason for separation as Secretarial Authority.

7.  However, the available evidence is not sufficient for changing item 6 of his 
DD Form 214 to show an MSO date.  A discharge from the Army entails a complete severance from all military status/obligations gained by that period of enlistment.  As such, the entry "00 00 00" is correct as shown and there is no error or injustice.  Therefore, he is not entitled to this portion of the 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 reflecting the following changes:

* item 25 – "Army Regulation 635-200, Paragraph 5-3"
* item 26 – "JFF"
* item 27 – "1"
* item 28 – "Secretarial Authority"

2.  The Board further determined that the evidence presented was 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 the MSO date in item 6 of his DD Form 214.  



      _______ _   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)                                         AR20120008940



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ABCMR Record of Proceedings (cont)                                         AR20120008940



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