BOARD DATE:  14 May 2013

		DOCKET NUMBER:  AR20120017183 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he believes it was unjust for him to be discharged solely for his sexual preference.  He was a good Soldier during his enlistment and he asked to be allowed to remain on active duty to complete his enlistment and his commitment to the Army.  He made decisions that he will forever regret, but telling the truth when asked by a superior should not be one of them.  The Army taught him to be honest, so he answered honestly and said, "yes," when he was asked if he was gay.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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's records show he enlisted in the Regular Army on 18 March 1986 and he held military occupational specialty 76Y (Unit Supply Specialist).  He was assigned to Company A, U.S. Army Garrison, Fort Ord, CA, on 8 August 1986.

3.  On 21 January 1988, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
paragraph 15-3b, for admitting to being a homosexual.  The commander stated he was recommending his receipt of a discharge under honorable conditions.

4.  On 21 January 1988, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge under honorable conditions, and the procedures and rights available to him.  He elected not to submit a statement on his own behalf.

5.  On 28 January 1988, his senior commander recommended approval of his separation under the provisions of Army Regulation 635-200, paragraph 15-3b, with a general under honorable conditions character of service.

6.  On 1 February 1988, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexuality and directed the issuance of a General Discharge Certificate.  On 10 February 1988, he was discharged accordingly.

7.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of "admission of homosexuality/bisexuality" with an under honorable conditions (general) character of service.  He completed 1 year, 10 months, and 23 days of creditable active service.

8.  His records are void of any adverse counseling statements or disciplinary actions.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the general policies and procedures for enlisted personnel separations.  Chapter 15, in effect at the time, stated that homosexuality was incompatible with military service.  The presence of persons who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct, in the military environment seriously impaired the accomplishment of the military mission.  Paragraph 15-3b stated a basis for separation may be when the Soldier had stated that he or she was a homosexual or bisexual, unless there was a further finding that the Soldier was not a homosexual.

11.  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 "Don't Ask, Don't Tell (DADT)" or prior policies.

12.  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" under separation program designator (SPD) code "JFF"
* characterization of the discharge to "Honorable"
* reentry eligibility (RE) code to an immediately-eligible-to-reenter category

13.  For the above changes to be warranted, the memorandum states both of the following conditions must be 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
14.  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.

15.  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.  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's discharge proceedings for homosexuality were conducted in accordance with law in effect at the time.  The characterization of his discharge was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

2.  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 reasons for discharge and characterizations of service changed.

3.  The evidence of record shows the applicant's records are void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, his overall record of service 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 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:


* issuing him a new DD Form 214 to show he was honorably discharged on 10 February 1988 by reason of Secretarial Authority under SPD JFF with
      an RE code of 1
* issuing him an Honorable Discharge Certificate, dated 10 February 1988



      _________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)                                         AR20120017183



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ABCMR Record of Proceedings (cont)                                         AR20120017183



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