IN THE CASE OF:	   

		BOARD DATE:	  28 May 2013

		DOCKET NUMBER:  AR20120019701 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states the laws have changed and his undesirable discharge should be changed to honorable and his rights and benefits restored.  He turned himself in to the battalion commander after the chaplain he talked to informed the battalion commander [that he was a homosexual].  He was asked to confirm what the chaplain said and he did.  He was told he would receive an honorable discharge.  He was then questioned by the provost marshal and asked to identify other Soldiers like him.  He refused and his discharge was changed to an undesirable discharge by the provost marshal. 

3.  The applicant provides no additional evidence.

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 17 September 1962 and he held military occupational specialty 711.10 (Clerk Typist).  He was assigned to the 37th Medical Battalion, Brooke Army Medical Center (BAMC), Fort Sam Houston, TX.

3.  On 11 September 1963, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful to a noncommissioned officer (NCO).

4.  On 1 October 1963, the applicant's immediate commander recommended discharge action be initiated against him under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality), for homosexuality because he (the applicant) had verbally and in writing admitted he was a homosexual.  The commander stated even though the applicant stated he had not practiced homosexual acts while in the military, he (the commander) felt he was unfit for military service on the basis of his own statement regarding his homosexuality.  He recommended the applicant receive a general, under honorable conditions discharge.

5.  In a statement dated 8 October 1963, the applicant acknowledged he received notification of his proposed discharge action and of the procedures and rights available to him.  He waived a hearing before a board of officers and declined consultation with legal counsel.

6.  His intermediate commander, Lieutenant Colonel SMB, subsequently recommended approval of the discharge action with the issuance of an Honorable Discharge Certificate.

7.  His senior commander, Brigadier General JTM, subsequently recommended approval of the discharge action with the issuance of an Honorable Discharge Certificate.

8.  On 16 October 1963, the BAMC Commanding General (CG), Major General JLS, recommended the applicant be processed as a Class III homosexual under the provisions of Army Regulation 635-89 with the issuance of an Honorable Discharge Certificate.

9.  On 18 October 1963, he received NJP under the provisions of Article 15, UCMJ for being disrespectful to an NCO.

10.  On 23 October 1963, the Deputy Adjutant General, Headquarters (HQ), Fourth U.S. Army, Fort Sam Houston, TX, requested an investigation be conducted by the Criminal Investigation Division (CID) to determine whether the discharge action was a Class II or Class III case.

11.  On 12 December 1963, the CID report of investigation concluded the applicant had engaged in homosexual acts while serving on active duty and he was a Class II homosexual as defined by Army Regulation 635-89.

12.  On 20 December 1963, the applicant was discharged under the provisions of Army Regulation 635-89, for homosexuality, Class II (separation program number 257) and issued an Undesirable Discharge Certificate.  

13.  The DD Form 214 (Report of Transfer or Discharge) he was issued confirms he was discharged in the rank of private/E-1 under the provisions of Army Regulation 635-89, for homosexuality with an under other than honorable conditions characterization of service.  He completed 1 year, 3 months, and 4 days of net active service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  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. 

16.  Army Regulation 635-89 stated enlisted members whose cases were processed under the Class II category normally would be furnished an Undesirable Discharge Certificate.  Enlisted members whose cases were processed under Class III would be furnished an honorable or general discharge based on the character of service rendered.

17.  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 DADT or prior policies.

18.  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

19.  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

20.  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.

21.  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 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 actions.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged on 20 December 1963 under the provisions of Army Regulation 635-89, for homosexuality with an under other than honorable conditions characterization of service and he was issued an Undesirable Discharge Certificate after an investigation found he committed homosexual acts.  

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

3.  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 due to homosexuality should now have their reason for discharge and characterizations of service changed.

4.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 effective 20 December 1963 with an honorable characterization of service, by reason of Secretarial Authority with an SPD code of JFF, and an RE code of 1; and

	b.  Issuing him an Honorable Discharge Certificate, dated 20 December 1963, in lieu of the Undesirable Discharge Certificate he now holds.



      ___________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)                                         AR20120019701





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ABCMR Record of Proceedings (cont)                                         AR20120019701



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