BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120012017 


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 his general discharge to a fully honorable discharge.

2.  The applicant states under current Department of Defense (DOD) policy homosexuals may serve openly without fear of receiving a less than fully honorable discharge.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* his DD Form 215 (Correction to DD Form 214)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 3 years on 5 November 1964.  He was trained as a light weapons infantryman and assigned to Company A, 2nd Battalion, 27th Infantry, Schofield Barracks, Hawaii.

2.  The applicant was absent without leave (AWOL) from 11-16 June 1965.  Upon his return to military control, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and his punishment was a forfeiture of $15.00 pay and 14 days of restriction and extra duty.



3.  The applicant was again AWOL from 26 June to 9 July 1965.  Upon his return court-martial charges were preferred against him for AWOL and breaking restriction.  On 29 July 1965, he was adjudged guilty by a special court-martial and sentenced to:

* reduction to private (E-1)
* confinement at hard labor for 6 months
* a forfeiture of $57.00 pay for 6 months

4.  The applicant received a psychiatric evaluation while in confinement.  He stated he was an "active homosexual" and went AWOL because of "sexual tension."  He stated he engaged in homosexual acts before and during his military service and added he might "approach one of his barracks-mates."  His psychiatric diagnosis was "Sexual perversion, homo-sexual."  The psychiatrist recommended he be discharged under the provisions of Army Regulation (AR) 635-89.

5.  On 2 September 1965, he was discharged under the provisions of AR 635-89 with an undesirable discharge.

6.  On 12 September 1977, the Army Discharge Review Board (ADRB) granted the applicant a discharge upgrade to general under honorable conditions.  His  re-issued DD Form 214 listed AR 635-200, paragraph 13-5A(7) as the authority and in Block 27 (Remarks), "MISCONDUCT-HOMOSEXUAL" as the reason.

7.  Army Regulation 635-89, in effect at the time, prescribed the authority for the disposition of military personnel who were homosexuals, who engaged in homosexual actions, or were alleged to have engaged in such acts.  This regulation stated the following definitions applied:

	a.  Homosexual Act - Bodily contact between persons of the same sex actively undertaken or passively permitted by either or both parties.

	b.  Class I - Those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.

	c.  Class II - Those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.  Class II also included all cases falling within Class I in which it was determined not to prefer charges or, if charges were preferred, not to refer them to a court-martial for trial.

	d.  Class III - Those cases in which service members have not engaged in a homosexual act during military service but have a verified record of pre-service homosexual acts.  Class III also included all other cases which did not fall within Class I or Class II. 

8.  Army Regulation 635-89 stated enlisted members whose cases were processed under the Class II category normally would be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge may be issued if warranted by the particular circumstances in a given case.  Enlisted members whose cases were processed under Class III would be furnished an honorable or general discharge based on the character of service rendered.

9.  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 (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 Don't Ask Don't Tell (DADT) or prior policies.

10.  The memorandum above states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF
* characterization of the service to honorable
* the RE code to immediately-eligible-to-reenter category

11.  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

12.  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.


13.  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 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 period.  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 facts and circumstances surrounding the applicant's military service indicate he was a disciplinary problem, having committed the offenses of AWOL and breaking restriction.  However, none of his misconduct was related to the reason for his separation – homosexual acts – and would not be considered aggravating factors in a discharge-for-homosexuality separation action.  

2.  His DD Form 214 for the period ending 2 September 1965 shows he was discharged under the provisions of Army Regulation 635-89, for homosexuality with an undesirable discharge (later upgraded to a general discharge by the ADRB).  

3.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with his record of service and the reason for separation in accordance with the governing regulations in effect at the time.

4.  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.

5.  Based on the absence of aggravating factors, in view of the foregoing the applicant's service for the period ending on 2 September 1965 merits an 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 that the evidence presented was 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 him a new DD Form 214 to show he was discharged with an honorable characterization of service, under the provisions of AR 635-200, paragraph 5-3, by reason of Secretarial Authority with an SPD code of JFF, and an RE code of 1, effective 2 September 1965; and

	b.  issuing him an Honorable Discharge Certificate, dated 2 September 1965.




      _______ _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)                                         AR20120012017



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012017



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1