IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022793 


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 that his Reentry (RE) Code be changed from a “4” to a ”1."

2.  The applicant states since the repeal of the “Don’t Ask – Don’t Tell” (DADT) policy and because sexual orientation is no longer relevant, he sees the opportunity to have his RE Code changed and to once again join the ranks.  He goes on to state that his character of service was reflective of the highest traditions of the military and will continue to be in the future.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  After serving 4 years, 10 months, and 28 days of prior active service, the applicant enlisted in the Regular Army in the pay grade of E-4 as an infantryman on 11 March 1997 for a period of 3 years and a cash enlistment bonus.  He was assigned to Fort Campbell, Kentucky for his first assignment and was promoted to the rank of sergeant on 1 March 1998.

3.  On 29 July 1999, the applicant signed a statement indicating that he had engaged in homosexual acts.

4.  On 5 August 1999, the applicant submitted a request to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, due to his natural propensity to engage in sexual activities with members of the same sex.

5.  On 17 August 1999, the applicant’s commander submitted a recommendation to discharge the applicant based on his signed statements indicating his natural propensity to engage in sexual activities with members of the same sex.  He recommended that the applicant receive an honorable discharge.  The applicant waived his rights and elected not to consult with counsel.

6.  The appropriate authority approved the recommendation on 18 August 1999 and directed that he be furnished an Honorable Discharge Certificate.

7.  Accordingly, he was honorably discharged on 27 August 1999 under the provisions of Army Regulation 635-200, paragraph 15-3B, due to homosexual admission.  He had served 2 years, 5 months, and 17 days of active service during his current enlistment and was issued a separation code of “JRB” and an RE Code of “4."

8.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There are no instances of nonjudicial punishment or courts-martial in his records.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial Authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  
   a.  The above regulation showed that the SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Homosexual Admission."  

	b.  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 15-3b.

11.  Additionally, the SPD/RE Code Cross Reference Table establishes an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for this reason.

12.  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.

13.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* narrative reason for discharge to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

14.  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

15.  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.

16.  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 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 those 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.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own statement that he was a homosexual and had engaged in homosexual acts.  There is no evidence of a further finding that he was not a homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

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 for homosexuality may now have their reason for discharge and RE code changed.

4.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in his records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue him a new DD Form 214 with the characterization as honorable, 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 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 the applicant a new DD Form 214 amending the following items as follows:

* Item 25 (Separation Authority) enter "Army Regulation 635-200, Paragraph 5-3"
* Item 26 (Separation Code) enter the SPD code of "JFF"
* Item 27 (Reentry Code) enter an RE code of "1"
* Item 28 (Narrative Reason for Separation) enter "Secretarial Authority"



      _______ _   __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)                                         AR20120022793





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ABCMR Record of Proceedings (cont)                                         AR20120022793



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