IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120020377 


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, in effect, he was young and he made a mistake by filing for a discharge due to homosexuality and he has spent his entire life trying to make up for it.  He states that he knows many other Soldiers who stayed in the Army whereas he took the easy way out. 

3.  The applicant provides 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 inducted into the Army of the United States on 19 August 1966 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 6 January 1967, he rendered a statement to his commander wherein he admitted to having participated in homosexual acts prior to his induction.  He added that after his entry into the Army, he continued to have the feeling that he wanted to be with other individuals of the same gender. 

4.  On 2 February 1967, he underwent a psychiatric evaluation that determined he was mentally responsible and able to distinguish right from wrong and adhere to the right.  The psychiatric report stated the applicant was candid about his homosexuality.  His condition was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification.  His diagnosis was that of sexual deviate, homosexuality. 

5.  On 16 February 1967, the applicant was notified by his immediate commander that discharge action was being initiated against him for unfitness/unsuitability (homosexuality - Class III) under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).  The immediate commander recommended a general discharge. 

6.  On 23 February 1967, the applicant acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of an undesirable discharge, and of the procedures and rights available to him.  He waived consideration of his case by a board of officers and elected not to submit a statement. 

7.  On 27 February 1967, consistent with the chain of command's recommendations, the separation authority approved his discharge for homosexuality under the provisions of Army Regulation 635-89 and directed the issuance of a General Discharge Certificate.  On 7 March 1967, the applicant was discharged accordingly.

8.  The DD Form 214 he was issued confirms he was discharged by reason of homosexuality under the provisions of Army Regulation 635-89 with an under honorable conditions characterization of service.  He completed a total of 
6 months and 19 days of creditable active service.  This form also shows he was assigned separation program number (SPN) 362 (Homosexual Tendencies, Desires or Interest Without Overt Homosexual Acts).

9.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation states, in pertinent part, that Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses.  Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 16 years) during military service.  Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate. 

10.  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/NRs) to follow when taking action on applications from former service members discharged under don’t ask don’t tell (DADT) or prior policies.

11.  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 reentry eligibility (RE) code to an immediately-eligible-to-reenter category

12.  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

13.  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.
14.  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 action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged on 7 March 1967 under the provisions of Army Regulation 635-89 by reason of homosexuality with an under honorable conditions (general) discharge after he disclosed he had homosexual tendencies.  

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.  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 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 effective 7 March 1967 by reason of Secretarial Authority with an SPD code of JFF and a Reentry Code of 1.




      ____________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)                                         AR20120020377



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ABCMR Record of Proceedings (cont)                                         AR20120020377



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