IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020121 


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 that his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions.

2.  The applicant states that he desires his discharge to be upgraded because service members are no longer being discharged for homosexuality since the repeal of “Don’t Ask – Don’t Tell” (DADT).   

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was commissioned as a Regular Army Engineer branch second lieutenant on 28 July 1961.  He completed the engineer officer basic course at Fort Belvoir, Virginia and was assigned to Fort Benning, Georgia for his first and only duty assignment.  He was promoted to the rank of first lieutenant on 
28 January 1963.

3.  In February 1963, the applicant admitted to an investigator that he had committed several homosexual acts with enlisted personnel in his unit on the Fort Benning installation.  Statements from several enlisted personnel confirmed the applicant’s admission.

4.  On 13 February 1963, the applicant tendered his resignation from the Army for the good of the service.  He acknowledged that he understood that he might be discharged under other than honorable conditions and that he would be deprived of benefits. 

5.  The applicant’s chain of command recommended approval of the applicant’s request and recommended that he be furnished a General Discharge Certificate.

6.  On 14 March 1963, an Ad Hoc Review Board consisting of a major general and three colonels assembled by the Army Council of Review Boards considered the applicant’s case independent of each other and recommended that he be discharged under other than honorable conditions because the acts committed by the applicant with and against enlisted men clearly indicate that it was a Class II case within the meaning of Army Regulation 635-89 and did not meet the criteria to warrant a general discharge.  The board approved his resignation with a discharge under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 
25 March 1963 under the provisions of Army Regulation 635-89, paragraph 6, due to misconduct – homosexual acts.  He had served 1 year, 7 months and
28 days of active service.

8.  There is no evidence to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.

9.  Army Regulation 635-89, in effect at the time, set forth the basis authority for the separation of homosexuals.  It stated, in pertinent part, that when investigation clearly indicates that a person is included in class II, he or she will be referred for physical and mental examination.  In the absence of a major disorder, charges and specifications for trial by general court-martial will be prepared and the accused will be confronted with them.  Disposition in class II cases will normally be accomplished by administrative separation under other than honorable conditions unless the individual resists separation under such conditions.

10.  That regulation provides that there are three classes of homosexual cases:

a. Class I – cases involving the invasion of another person as where the homosexual act is accompanied by assault or coercion or where the other person does not willingly cooperate.  It also includes cases involving a homosexual act with a child under the age of consent.

b. Class II – cases involving personnel subject to court-martial jurisdiction, including overt, confirmed homosexuals, having engaged in one or more homosexual acts not within the purview of class I.  Included in the definition of homosexual acts are overt acts, active or passive in nature, and proposals, solicitations, or attempts to perform any homosexual act even though no overt act is committed.

c. Class III – Cases of overt, confirmed homosexuals who have not engaged in any homosexual acts since entry into active service and individuals who possess homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who merely profess homosexual tendencies should normally be retained.

11.  The DADT policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members regarding their sexual orientation.  Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay, or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

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, U.S. Code, provides policy guidance for Service 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 DADT or prior policies.  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 (the change should be to "Secretarial Authority" (SPD code JFF))
* characterization of the discharge to honorable
* reentry eligibility code to an immediately-eligible-to-reenter category

13.  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

14.  The memorandum further states that although each request must be evaluated on a case-by-case basis, 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 Correction Boards have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the discharge review board, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT or prior policies are not warranted.  Although DADT was 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 those 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 administrative separation was administratively correct and in conformance with applicable regulations, with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
 
3.  Although DADT was repealed effective 20 September 2011, the applicant's discharge occurred prior to the DADT policy and his discharge proceedings for homosexuality were conducted in accordance with law and regulations 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.

4.  The Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, stated that in order to warrant an upgrade there were no aggravating factors in the record, such as misconduct.

5.  According to the evidence of record and especially the applicant’s own admission to investigating officials, the applicant engaged in several acts of a homosexual nature with several enlisted men on the installation of Fort Benning.  

6.  Officers are in a position of authority at all times and are expected to maintain control and set an example at all times.  While being homosexual is not a disqualifier for service to one’s country, the engagement in sexual acts of any kind between and officer and an enlisted person of any sex is prohibited.  This is especially true when the enlisted personnel are under the control of the commissioned officer.  Accordingly, the applicant's actions violated the Uniform Code of Military Justice as conduct unbecoming an officer and gentleman.

7.  It should also be noted that even under today’s standards, the applicant would be just as culpable for his actions as he was in 1963.  He violated the trust placed in him as a leader and as a commissioned officer and as such there appears to be no basis to grant his request for an upgrade of his discharge.

  BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X_ _  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


      ___________X____________
                 CHAIRPERSON
 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)                                         AR20120020121





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ABCMR Record of Proceedings (cont)                                         AR20120020121



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