BOARD DATE:  9 May 2013

		DOCKET NUMBER:  AR20120022091 


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 reconsideration of his request to change his narrative reason for a separation, separation program designator code, and reentry (RE) code.  Specifically, he now requests his DD Form 214 show at:

* item 25 (Separation Authority) - ARMY REGULATION 635-200, PARAGRAPH 5-3B
* item 26 (Separation Code) - JFF
* item 27 (Reentry Code) - 1
* item 28 (Narrative Reason for Separation) - SECRETARIAL AUTHORITY 

2.  The applicant states he is requesting the correction of his records based on the changes to the law eliminating and granting relief under the provisions resulting from the repeal of Don't Ask Don't Tell (DADT).

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), 3 military documents utilized in his separation processing, a Department of Veterans Affairs award letter, an education transcript, a web copy of Army Board for Correction of Military Records (ABCMR) Decisional Document AR20110022835, and the 20 September 2011 Under Secretary of Defense "Don't Ask, Don't Tell" memorandum. 


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060013863 on 7 June 2007.

2.  The applicant served on active duty from 8 July 2004 through 23 November 2005.

3.  His DD Form 214 provides the following at:

* Item 24 - HONORABLE
* item 25 - ARMY REGULATION 635-200, PARAGRAPH 15-3B
* item 26 - JRB
* item 27 - 4
* item 28 - HOMOSEXUAL (ADMISSION) 

4.  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.

5.  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) RE code to immediately-eligible-to-reenter category

6.  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
* there were no aggravating factors in the record, such as misconduct.

7.  The memorandum also recognized that although Boards for Correction of Military/Naval Record's (BCMNR) have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB’s.  Upon finding an error or injustice, the BCMNR's may fashion the remedy they find necessary and appropriate within legal limits.  Although correction boards have wide latitude in determining what constitutes an error or injustice, 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 was repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  

8.  It further states that the 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 any otherwise proper action taken under DADT [or prior policies].  Thus, remedies such as correcting a record to reflect continued service with no discharge, credit for time lost, restoration to a previous grade or position, or an increase in separation pay would not normally be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for homosexuality admission, 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 and his overall record of military service.  The applicant's DD Form 214 was correct and appropriate at the time it was created.  

2.  However, subsequent to the applicant's original request Congress changed the DADT law and, in effect, allowed for a retroactive correction in cases where the reason for separation was based solely on a homosexual admission and no aggravating factors were involved. 

3.  In view of the above, it would be appropriate to issue him a new DD Form 214 with the separation authority as Army Regulation 635-200, paragraph 5-3, an SPD code of "JFF," an RE code of "1" and a narrative reason for separation as Secretarial Authority.

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 amendment of the ABCMR’s decision in Docket Number AR20060013863 on 7 June 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Issuing the individual a new DD Form 214 with the following entries in items:

* Item 25 (Separation Authority) - "Army Regulation 635-200, 
	Paragraph 5-3"
* Item 26 (Separation Code) - "JFF"
* Item 27 (Reenlistment Code) -  "1"
* Item 28 - (Narrative Reason for Separation) - "Secretarial Authority"
 
	b.  Issuing him an Honorable Discharge Certificate, dated 25 November 2005, in lieu of the Undesirable Discharge Certificate he now holds.



      _________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)                                         AR20120022091





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ABCMR Record of Proceedings (cont)                                         AR20120022091



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