BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011421 


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 her general discharge (GD) to an honorable discharge (HD).

2.  The applicant states, in effect, that she wants an upgrade of her discharge based on the change in the "Don't Ask, Don't Tell" (DADT) policy.  She summarized the events of her military service in a 2-page narrative.

3.  The applicant provides no additional documentation.

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.  On 4 December 1979, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).

3.  On 22 April 1980, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful command to get into formation and run.

4.  On 17 June 1980, the applicant was assigned to Fort Campbell, Kentucky.

5.  A DA Form 2823 (Sworn Statement) rendered by the applicant on 
15 December 1980 states, in effect, that she admitted to being gay and had been practicing a life style as such.  She stated she was under a lot of stress and felt it was better if she dismissed herself as a Soldier.

6.  On 6 January 1981, the applicant’s commander recommended that she be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability based on her confession of being a practicing lesbian and that she could not cope with continued active duty service due to her anxiety stemming from her homosexual activities.

7.  On 7 January 1981, the applicant consulted with counsel and elected to not make a statement in her own behalf.

8.  On 6 March 1981, the appropriate authority approved the recommendation for separation and directed that she be issued a General Discharge Certificate.

9.  Accordingly, she was discharged under honorable conditions on 11 March 1981.  She had completed 1 year, 3 months, and 8 days of creditable active duty service.  She was awarded a separation program designator (SPD) code of JML indicating unsuitability due to homosexuality and a reenlistment (RE) code of 4, which is a non-waivable condition for reentry into the military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to homosexuality.  The regulation required that separation action would be taken when in the commander’s judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

12.  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, United States Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.

13.  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

14.  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

15.  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.

16.  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 by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general, under honorable conditions discharge should be upgraded to an honorable discharge based on the change in law.

2.  The applicant's discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of her discharge was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

3.  Nevertheless, the law has since been changed, and current standards are now 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.

4.  The evidence of record shows the applicant's record contains NJP for disobeying a lawful command about a year prior to her separation.  The record is void of any other adverse counseling statements or disciplinary actions.  In view of the foregoing, her overall record of service merits a characterization of service upgrade to fully honorable.

BOARD VOTE:

__X_____  ___X___  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority (SPD JFF) with an RE code of 1 on 11 March 1981, and



	b.  issuing her an Honorable Discharge Certificate, dated 11 March 1981.



___________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)                                         AR20120011421





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ABCMR Record of Proceedings (cont)                                         AR20120011421



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