BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009861 


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, in effect:

	a.  the applicant's general discharge be upgraded to honorable;

	b.  his narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to Secretarial Authority;

	c.  his separation code be changed to "JFF"; and

	d.  his reenlistment (RE) code be changed to RE-1J.

2.  Counsel states:

	a.  in 1984, the applicant was separated from the Army for homosexual conduct.  Pursuant to his discharge, he received a general discharge, a narrative reason of "Engaged Attempted to Engage in or Solicited Another to Engage in Homosexual Act(s)," a separation code of "JRA," and a RE code of 4.  Since that time, the law has changed.


	b.  Pursuant to the repeal of the policy commonly known as "Don't Ask, Don't Tell" (DADT) which took place on 20 September 2011, service members have been free to make homosexual statements, to enter into homosexual marriages, and to engage in legal homosexual acts without facing separation on the basis of such behavior.  In addition, the Department of Defense has issued guidance which created a standard for the correction of military records for those discharged under DADT or a similar previous regulation.

	c.  the applicant meets the standard necessary under the new guidance to merit an upgrade to his discharge paperwork.  He was discharged entirely on the basis of homosexual conduct, under a regulation in place prior to DADT.  His case did not involve any aggravated factors.       
 
3.  Counsel provides 8 attachments outlined in his 16-page brief.

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 on 12 November 1982 for a period of 3 years.  He completed his training and was awarded military occupational specialty 91B (medical specialist).  

3.  On 17 March 1984, the applicant's command initiated separation proceedings against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15, for homosexuality.

4.  On 19 March 1984, he consulted with counsel, acknowledged he might encounter substantial prejudice in civilian life if a general discharge were issued to him, and elected to submit a statement in his own behalf; however, this statement is not available.

5.  On 26 March 1984, the separation authority approved the recommendation and directed the issuance of a general discharge.

6.  On 29 March 1984, he was discharged under the provisions of Army Regulation 635-200 with a separation program designator (SPD) code of "JRA," a General Discharge Certificate, a character of service of under honorable conditions, and an RE code of "4."  He completed 1 year, 4 months, and 18 days of total active service.  

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 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.

8.  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" and the SPD code to JFF
* characterization of the discharge to honorable
* 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 or prior periods.  Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Counsel provided the Under Secretary of Defense memorandum, dated 
20 September 2011, which states effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the RE code to an immediately-eligible-to-reenter category (the new RE code should be RE code 1J).

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.  RE-1J is not a valid Army RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.

2.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reasons for discharge and, when appropriate, characterizations of service changed.

3.  There were no aggravating factors in the record, such as misconduct.

4.  Therefore, the applicant's DD Form 214 should be amended to show his:

* character of service as "Honorable"
* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code to an immediately-eligible-to-reenter category "1"

5.  Counsel's request to change the applicant's RE code to RE-1J and the Under Secretary of Defense memorandum which states the new RE code should be RE-1J were noted.  However, RE-1J is not a valid Army RE code and it may have been an administrative oversight when the memorandum was prepared.  The governing regulation states RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated (an immediately-eligible-to-reenter category).  

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 voiding the previously-issued DD Form 214 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" effective 29 March 1984.

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 
RE-1J.  


      _______ _ 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)                                         AR20120009861



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ABCMR Record of Proceedings (cont)                                         AR20120009861



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