BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001251 


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 narrative reason for discharge on her DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states the Department of Veterans Affairs informed her that her narrative reason for discharge is no longer valid and should be corrected to "Secretarial Authority."  She states that, pursuant to the "Don't Ask, Don't Tell (DADT) Repeal Act of 2010," the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have certified that the Department of Defense is prepared for the repeal of section 654 of Title 10, U.S. Code, commonly referred to as DADT.  The repeal took effect on 20 September 2011.

3.  The applicant provides a copy of the Under Secretary of Defense letter and her DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 November 1991 for a period of 4 years.  She was awarded military occupational specialty 31D (Mobile Subscriber Equipment Transmission System Operator) and assigned to
Fort Hood, TX.

2.  On 4 March 1993, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, for homosexuality.  The specific reason for the discharge was that the applicant admitted to being homosexual.  The applicant acknowledged receipt of the commander's notification on 4 March 1993.  

3.  On 9 March 1993, she consulted with legal counsel and she was advised of the basis for the contemplated separation action, the procedures and rights that were available to her, the type of discharge she could receive, and its effect on her ineligibility to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  She also:

* waived consideration of her case by an administrative separation board
* elected not to submit statements in her own behalf
* acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her

4.  Subsequent to this acknowledgement, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200, chapter 15.

	a.  The separation action shows, on 17 December 1992, the applicant signed a sworn statement acknowledging her homosexuality and asserting that she had not had homosexual tendencies before joining the U.S. Army.  Then, on
22 February 1993, after the commander advised the applicant of her rights, she waived her rights and affirmed her sworn statement of 17 December 1992.

	b.  He noted that there was no record of disciplinary actions, nonjudicial punishment, courts-martial, or any other derogatory information.

	c.  Based on her record of performance, the commander recommended that she receive an honorable discharge.

5.  On 10 March 1993, her intermediate commander recommended approval of the discharge action with the issuance of an honorable discharge. 

6.  On 15 March 1993, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, with the issuance of an Honorable Discharge Certificate.

7.  The DD Form 214 she was issued shows she was honorably discharged on
7 April 1993 under the provisions of Army Regulation 635-200, paragraph 15-3b, based on admission of homosexuality.  She completed 1 year, 5 months, and
3 days of active service.  She was also assigned Separation Code "JRB" and Reentry (RE) Code "4."
8.  Army Regulation 635-200, chapter 15, in effect at the time, prescribed the general policies, 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.  In all other cases, the type of discharge would reflect the character of the Soldier's service.

9.  The DADT 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.

10.  Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., Army Regulation 635-200, paragraph 5-3) and the Separation Program Designator (SPD) code to "JFF" (Secretarial Authority).  It also shows that requests to re-characterize the discharge to honorable and/or to change the reentry code to an immediately-eligible-to-reenter category
(i.e., RE Code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct.

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 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 November 1991 to 7 April 1993.  During her military service she admitted to being a homosexual.  Accordingly, her chain of command initiated separation action against her and she was issued an honorable discharge.

2.  The applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error.

3.  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 the authority and reason for discharge changed, and the RE code should normally be changed.

4.  Therefore, in view of the foregoing, the applicant's DD Form 214 should be corrected to show "Secretarial Authority" as the narrative reason for separation 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 her 7 April 1993 DD Form 214 and issuing her a new DD Form 214 to 


show she was honorably discharged 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)                                         AR20130001251



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ABCMR Record of Proceedings (cont)                                         AR20130001251



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