IN THE CASE OF:

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120021133 


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 his records so he will be eligible for retirement.
 
2.  He states that he had served over 18 years before he received a general discharged for homosexuality.  That discharge was upgraded to honorable under the revised "Don't Ask, Don't Tell" legislation.   It was his intention to complete 
20 years of service but he could not due to the discharge for homosexuality.  

3.  He provides copies of:

* his DD Form 214 ending 28 October 1963
* his DD Form 214 ending 9 January 1964 showing an under honorable conditions discharge
* a re-issued DD Form 214 ending 28 October 1963 showing an honorable discharge
* ABCMR Record of Proceedings Docket Number AR20110019633, dated 
5 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

2.   Having had prior active service, the applicant reenlisted in the Regular Army (RA), on 29 October 1957.  He held military occupational specialty 716.60 (Personnel Specialist).  

3.  On 28 October 1963, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he completed 6 years of service during this period of service and he had 12 years, 5 months, and 18 days of prior service.

4.  On 29 October 1963, he reenlisted and served until he was discharged on 9 January 1964.  The DD Form 214 he was issued shows he completed 2 months and 11 days of active service during this period of service and he had 18 years, 5 months, and 18 days of prior service, which equals a total of 18 years, 7 months, and 29 days of active service.

5.  Item 11c (Reason and Authority) of this DD Form 214 shows he was discharged under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality), for homosexuality with an under honorable conditions characterization of service.  

6.  On 5 April 2012, the ABCMR upgraded his general discharge to an honorable discharge.  However, his first, rather than his second, DD Form 214 was           re-issued on 31 May 2012.

7.  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.

8.  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.

9.  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.

10.  Public Law 102-484, dated 23 October 1992, added Section 1176a to 
10 U.S.C.  Section 1176a, 10 U.S.C. states that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 6330 or 8914 on this title, shall be retained on active duty until the member is qualified for retirement, unless the member is sooner retired or discharged under any provision of law.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Nevertheless, the law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity.  His service for the period ending on 9 January 1964 merited an upgrade to fully honorable.

3.  The law stating that a Soldier selected for involuntary separation, who is within two years of qualifying for retirement, must be retained until retirement does not pertain to the applicant because he was discharged in 1964 and the new law did not exist until 1992. 

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  There is no evidence that an error or injustice occurred.  Therefore, he is not entitled to the requested relief.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Evidence shows that the applicant’s records contain an administrative error (the re-issuances of his DD Form 214) which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION	

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by:

* Voiding the DD Form 214 re-issued on 31 May 2012
* Re-issuing his DD Form 214 for the period ending 9 January 1964 to show he separated with an honorable characterization of service



      _______ _  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)                                         AR20120004394



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ABCMR Record of Proceedings (cont)                                         AR20120021133



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