IN THE CASE OF:	  

		BOARD DATE:  16 July 2013

		DOCKET NUMBER:  AR20120021401 


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 correction of the character and reason for his 
17 February 1974 discharge.

2.  The applicant states he enlisted in the U.S. Army and he was assigned to the Republic of Korea (ROK).

   a.  He came to realize he was gay and spoke to a Roman Catholic priest about the matter.  He believed the conversation would be confidential between the two of them.  To his astonishment, he was discharged a few weeks later.

   b.  He had planned to make the Army a career and he has lived with the shock and trauma of that event since he was discharged.  He has feelings of being an outcast, harassed, belittled, disrespected, and rejected.

   c.  He adds that current regulations and military policy allow homosexuals to serve in the military.

3.  The applicant provides copies of his enlistment and separation documents.

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.  Two DD Forms 4 (Enlistment Contracts - Armed Forces of the United States) show the applicant enlisted in the U.S. Army Reserve on 16 April 1973 for a period of 6 years and he further enlisted in the Regular Army (RA) on 6 June 1973 for a period of 2 years.  He later extended the period of his RA enlistment for a period of 12 months.

3.  Upon completion of training, he was awarded military occupational specialties 76P (Stock Control and Accounting Specialist) and 76R (Missile Repair Parts Specialist).  He was assigned to Battery A, 2nd Battalion, 44th Air Defense Artillery (Hercules) in the ROK on 27 November 1973.

4.  On 11 January 1974, the applicant's unit commander notified him that he was initiating action to separate him for unsuitability.  The reasons for the proposed action were the applicant's homosexual tendencies which were without overt sexual acts, his inability to communicate with others, and immaturity.

   a.  He was advised of his rights and the separation procedures involved.

   b.  He elected not to submit a statement in his own behalf.

   c.  The applicant's noncommissioned officer in charge and officer in charge submitted statements in his behalf attesting to his satisfactory character, attitude, and efficiency.  The unit commander rated his conduct and efficiency as "excellent."

5.  On 13 February 1974, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Separation for Unfitness or Unsuitability), paragraph 13-5b(5), by reason of homosexuality and directed the applicant receive a General Discharge Certificate.

6.  A DD Form 214 (Report of Separation from Active Duty) shows that on
17 February 1974 the applicant was discharged under honorable conditions and issued a General Discharge Certificate.

7.  A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

8.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of 10 U.S.C., 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 "don't ask, don't tell" (DADT) or prior policies.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code "JFF"))
* characterization of the discharge to honorable
* the reentry (RE) code to an immediately-eligible-to-reenter category

9.  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 available evidence, such as misconduct

10.  The memorandum also 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.

11.  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 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 applicant's administrative discharge was accomplished in accordance with regulations then in effect with no violations of any of his rights.  Accordingly, the type of discharge was appropriate under the circumstances.

2.  However, it appears the applicant was discharged based on homosexuality and reasons not involving misconduct.  The law regarding homosexual separations has been changed and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterization of service changed.

3.  It appears the applicant's overall record of service merits a characterization of service upgrade to fully honorable.  Accordingly, in view of the current standards for discharges issued for homosexuality, it would now be appropriate correct his
DD Form 214 to show his characterization of service as "honorable" and the narrative reason for separation as "Secretarial Authority."  It should also be corrected to show an SPD code of "JFF" (Secretarial Authority), and an RE code of "RE-1" (qualified for enlistment if all other criteria are met).  

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.  voiding his 17 February 1974 DD Form 214; and




	b.  issuing him a new DD Form 214 showing he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, by reason of "Secretarial Authority" and that he was assigned an SPD code "JFF" with an RE code of "RE-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)                                         AR20120021401



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ABCMR Record of Proceedings (cont)                                         AR20120021401



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