IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130000702 


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 an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states due to hypocrisy he felt about who he was, he informed his superiors of his sexuality.  He did not want to leave the military but he could not continue to lie.  Consequently, he was discharged.  He abided by all the rules of military conduct during his service.  But now that serving openly is no longer an issue, he should not be stigmatized with an under other than honorable conditions discharge.  In effect, the repeal of the Don't Ask, Don't Tell (DADT) policy should be considered in upgrading his discharge. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 5 June 1981 and he held military occupational specialty 91F (Field Artillery Meteorological Crewmember).  He was assigned to Fort Sill, OK.

2.  On 18 November 1981, he was investigated by military police for sodomy/homosexual acts.  He had related to his commander that he was a homosexual.  His commander contacted military police officials.  He was interviewed and advised of his rights.  He made a statement admitting that he was a homosexual and he had no desire to change his sexual preference.  
3.  The investigation determined there was insufficient probable cause to believe the applicant committed any criminal act.  Therefore, no further investigation was warranted.  

4.  On 24 November 1981, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for homosexuality.  The specific reasons for the discharge were that the applicant admitted to being homosexual. 

5.  On 25 November 1981, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the bases for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He also acknowledged:

* he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both State and Federal law

6.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of homosexuality.  The immediate commander stated that the applicant admitted to him, the chaplain, and a mental hygiene counselor of being homosexual.  He had been since the age of 13.  He had not engaged in any homosexual acts since his entry on active duty.  Based on his outstanding performance, the immediate commander did not believe him to be professing homosexuality merely as a means to an easy discharge.

7.  On 3 December 1981, his intermediate commander recommended approval of the discharge action with the issuance of a general discharge. 

8.  On 9 December 1981, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of "Misconduct – Homosexual" Moral or Professional Dereliction" with the issuance of a General Discharge Certificate.  Accordingly, he was discharged on 16 December 1981.  

9.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 15 of Army Regulation 635-200 and his service was characterized as "Other than Honorable."  He completed 6 months and 12 days of active service.  He was also assigned Separation Code "JKC" and Reentry (RE) Code 3.  

10.  Army Regulation 635-200, chapter 15 at the time, prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

11.  The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

12.  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.  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 RE code to an immediately-eligible-to-reenter category

13.  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 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/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 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.  The applicant served on active duty from 5 June to 16 December 1981.  During his military service, he admitted to being a homosexual.  A subsequent investigation/mental status evaluation confirmed the homosexuality but determined no criminal misconduct was committed.  His chain of command initiated separation action against him. 

2.  The applicant's discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The under honorable conditions (general) characterization of service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.  It is noted that the separation authority ordered a general, under honorable conditions discharge while the DD Form 214 listed an "Other than Honorable" characterization of service.  

3.  But regardless, 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 should now have their reason for discharge and characterizations of service changed.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, his overall record of service merits a characterization of service upgrade to fully honorable by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

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 his DD Form 214 for the period ending 16 December 1981 and issuing him a new DD Form 214 to show he 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)                                         AR20130000702





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ABCMR Record of Proceedings (cont)                                         AR20130000702



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