. 

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120015373 


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, in effect, correction of her records to reflect the separation authority and narrative reason for separation under current standards with an honorable discharge.  She further requests any benefits she may be entitled to be reinstated.

2.  The applicant states, in effect, her type of discharge is no longer allowed and the reason for her discharge is no longer applicable.  

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 8 January 1985, for a period of 4 years.  

2.  The evidence of record shows on 29 March 1985, the applicant was reported to have kissed another female Soldier.  On 30 and 31 March 1985, while under the influence of intoxication, she made homosexual remarks and advances toward female Soldiers in her unit.

3.  Evidence shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 24 May 1985, for being absent without leave (AWOL) for the period 1 May through        15 May 1985.  The applicant stated she went to Savannah, GA, to see a woman who had been her homosexual lover prior to entering the Army.
4.  On 5 June 1985, her immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph 15-3a and (b) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for homosexuality.  The discharge was specifically recommended for homosexual admission during her current term of service.  

5.  The applicant acknowledged receipt of the separation notification memorandum.  She consulted with counsel and she was advised of the basis for the proposed separation action.  She requested appearance before and consideration of her case by a board of officers.

6.  However, on 27 June 1985, the applicant, having been advised by her attorney and understanding her rights to present her case to a board of officers, waived her right to present her case to the board with the understanding that she would be separated from the Army with an entry-level separation since she was still in an entry-level status.

7.  On 1 July 1985, the separation authority approved the proposed discharge action and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 15a and (b), and given an (uncharacterized) entry-level separation.

8.  On 3 July 1985, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b.  She completed 5 months and 12 days of creditable active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time shows in:

* Item 24 (Character of Service) – "Uncharacterized"
* item 25 (Separation Authority) – "Para 15-3b, AR [Army Regulation]     635-200"
* item 26 (Separation Code) – "JRB"
* item 27 (Reenlistment (RE) Code) – "RE-3 RE-3b"
* item 28 (Narrative Reason for Separation) – "Admission of Homosexuality/Bisexuality"

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

10.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action), except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribed that SPD code JRB was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of Admission of Homosexuality/Bisexuality.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code 3 as the proper reentry code to assign to Soldiers separated under this authority and narrative reason for separation.

12.  The Under Secretary of Defense for Personnel and Readiness memorandum, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, dated 20 September 2011, 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 "don't ask, don't tell" (DADT) or prior policies.

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

* Narrative Reason for Separation to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* Characterization to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

14.  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 and 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/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 that same or prior periods.  Therefore, 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 evidence of record shows the applicant was reported to have kissed and made homosexual remarks and advances towards female Soldiers in her unit.  She later went AWOL for approximately two weeks to see a woman who had been her homosexual lover prior to entering the service for which she subsequently received NJP under the provisions of Article 15, UCMJ.  

2.  The evidence of record shows the applicant was discharged on 3 July 1985, under the provisions of Army Regulation 635-200, by reason of an admission of homosexuality/bisexuality with an uncharacterized discharge.  Her discharge proceedings were conducted in accordance with law and regulations in effect at the time and the rights of the applicant were fully protected throughout the separation process.

3.  The law has since been changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code,      RE code and, when appropriate, characterization of service changed.  

4.  In view of the changes in the law, it is now appropriate to issue her a new DD Form 214 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

5.  The applicant was discharged after completing 5 months and 12 days of net active service while she was in an entry-level status.  This status required that her service be uncharacterized.  An uncharacterized discharge is neither positive nor negative.  It simply means the Soldier did not serve on active duty long enough to qualify for a specific characterization of service.  Therefore, there is no basis for changing the characterization of service shown on her DD Form 214.

6.  The ABCMR does not grant requests solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for  benefits should be addressed to the Department of Veterans Affairs.

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 her current DD Form 214 for the period ending 3 July 1985, and issuing her a new DD Form 214 for the period ending 3 July 1985, to show in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - 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 her uncharacterized discharge to an honorable discharge. 



      _______ _   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)                                         AR20120015373





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ABCMR Record of Proceedings (cont)                                         AR20120015373



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