IN THE CASE OF:	 

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021339 


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 upgrade of her general under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

   a.  she was discharged for her admission of homosexuality in 1986 under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 15.
   
   b.  this is no longer a relevant issue with the repeal of "Don't Ask, Don't Tell" (DADT).  Her service was otherwise untainted. 

3.  The applicant does not provide additional evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 May 1984.  She completed training and was awarded military occupational specialty 91A (Medical Specialist).

2.  A Standard Form 600 (Chronological Record of Medical Care), dated 21 November 1985, shows the applicant self-confessed to being a homosexual.  She further admitted she had her first sexual experience in August 1984 while she was in Advanced Individual Training and the act occurred outside the military installation with a civilian female.

3.  DA Forms 3822-R (Report of Mental Status Evaluation), dated 4 December 1985 and 10 December 1985, show the applicant had no psychiatric disease or defect and she was cleared for action as deemed appropriate by her command.

4.  On 11 December 1985, the applicant's command initiated separation proceedings against her under the provisions of Army Regulation 635-200, chapter 15, due to homosexuality.  

5.  On 20 December 1985, the applicant acknowledged receipt of the separation notification memorandum.  She consulted with counsel and she was advised of the basis of the proposed separation action.  She waived consideration of her case by an administrative board, appearance before an administrative separation board, and the submission of a statement in her own behalf.

6.  On 31 December 1985, the separation authority approved the proposed discharge action and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15, with a General Discharge Certificate.

7.  On 3 January 1986, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b.  She completed 1 year, 7 months, and 24 days of creditable active service.  The DD Form 214 she was issued at the time shows in:

* Item 24 (Character of Service) – "Under Honorable Conditions"
* item 25 (Separation Authority) – "AR (Army Regulation) 635-200, para (paragraph) 15-3b"
* item 26 (Separation Code) – "JRB"
* item 27 (Reenlistment (RE) Code) – "RE-4"
* item 28 (Narrative Reason for Separation) – "Admission of homosexuality"

8.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribes that SPD code JRB is the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexual admission.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

11.  The Under Secretary of Defense for 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 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 Separation to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* Characterization to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

13.  For the above corrections/amendments 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 and 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 for 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 evidence of record shows the applicant was discharged on 3 January 1986 under the provisions of Army Regulation 635-200 by reason of homosexual admission with an under honorable conditions discharge. 

2.  Her discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of her service was commensurate with the reason for her 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 may now have their reason for discharge and characterizations of service changed.  Since there were no aggravating factors in the record, 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 the Department of the Army records of the individual concerned be corrected by voiding her DD Form 214 and issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE 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)                                         AR20120021339



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ABCMR Record of Proceedings (cont)                                         AR20120021339



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