BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130001603 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's under other than honorable conditions characterization of service be upgraded to honorable, his narrative reason for separation be changed to "Secretarial  Authority," and his separation code be changed to "JFF.''

2.  Counsel states the applicant was discharged from the U.S. Army under other than honorable conditions in 1959.  He was issued a DD Form 258A (Undesirable Discharge Certificate) and assigned a separation code indicating "Unfitness- Homosexual Acts."  With the repeal of the policy commonly known as "Don't Ask, Don't Tell" (DADT), the military's policy on homosexuality has significantly changed, and service members can now serve openly without fear of being separated for engaging in homosexual conduct or on the basis of their sexual orientations.  On the day of DADT's repeal, the Under Secretary of Defense for Personnel and Readiness issued a memorandum (Stanley Memorandum) indicating that qualifying service members separated under DADT and previously enacted similar policies can have their discharge information upgraded.  As the applicant falls within this category and meets the Stanley Memorandum requirements for an upgrade, the Board should upgrade his characterization of service to honorable, his narrative reason to "Secretarial Authority," and his separation code to "JFF.''  In the alternative, the Board should upgrade his discharge information to the designations mentioned above because to do so would provide equitable relief to correct an injustice.

	a.  Counsel further states the applicant entered active duty in the U.S. Army on 21 September 1956 at the age of 18.  He attests that in late 1958 or early 1959, he was transferred to a new unit.  At this new location, he felt as though he was being subjected to unusual scrutiny, including having his locker searched at night.  He attests that some time after the locker incident, his commander approached him and told him that three service members had accused him of making homosexual statements to them.  He was told that he would be separated and that, if he complied with the separation, he would receive a general discharge characterization.  He attests that he did his best to comply, submitting to questioning and to psychiatric evaluation as part of this investigation.  After this investigation had concluded, he was separated from the Army under the authority of Army Regulation 635-89 (Personnel Separations – Homosexuality).  The regulation under which the applicant was discharged governed separations by reason of homosexuality.  However, rather than a general discharge, he received an Undesirable Discharge Certificate with an other than honorable conditions characterization of service.

	b.  The applicant meets the criteria necessary to merit an upgrade to his discharge paperwork in accordance with the Stanley Memorandum.  He was discharged under a regulation which governed the discharge of service members for homosexuality prior to the enactment of DADT.  Further, there are no aggravating factors in his record of discharge.  Accordingly, he meets the standard set forth under the Stanley Memorandum and merits the changes he seeks to his discharge paperwork.  He was discharged entirely on the basis of homosexual conduct, pursuant to a policy similar to DADT.

3.  Counsel provides a list of provided documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

2.  On 21 September 1956, he enlisted in the Regular Army for a period of 3 years.  After the completion of training, he served in military occupational specialty 768.10 (General Supply Specialist).  
3.  His record contains an AE Form 3087 (Certificate of Psychiatric Examination), dated 26 March 1959, which shows the applicant was diagnosed as a "sexual deviate, homosexual type, class II, manifested by overt homosexual activity."  The form states his sexual history revealed heterosexual activity as well as intermittent homosexual relationships.  His condition was characterized by overt homosexual activity.

4.  A DD Form 481-3 (Clinical Record Cover Sheet) shows he was diagnosed as a "sexual deviate" and that the condition existed prior to service.

5.  His available record is void of documentation related to his military service, conduct, and performance.   

6.  His complete separation packet is not available.  However, the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he received shows on 9 May 1959 he was discharged under other than honorable conditions with issuance of an Undesirable Discharge Certificate in the rank of recruit/E-1 under the provisions of Army Regulation 635-89.  He was assigned Separation Program Number (SPN) 257 (Unfitness, Homosexual Acts).  He had served 2 years, 7 months, and 19 days of active military service.

7.  Army Regulation 635-89 governed separation of homosexuals.  It stated personnel would be discharged under other than honorable conditions if the case fell within Class II.  Class II consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

8.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service.  The SPD code JFF specifies the narrative reason for discharge as Secretarial Authority.  The authority for discharge under this SPD is paragraph 5-3 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

9.  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, United States 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.

10.  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" (SPD Code JFF)
* characterization of the discharge to honorable
* reenlistment (RE) code to 1

11.  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

12.  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.

13.  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 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 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 evidence shows medical personnel found the applicant to be a person who engaged in overt homosexual activity.  

2.  His available record is void of documentation reflecting any aggravating factors such as misconduct.

3.  His discharge proceedings are not available for review.  However, absent evidence to the contrary, it must be presumed that they were conducted in accordance with law and regulations in effect at the time and the characterization of his discharge was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.
4.  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 should now have their reason for discharge, RE Code, and SPD code changed.

5.  In view of the foregoing, it would be appropriate to grant him an honorable discharge and issue him a new DD Form 214 with the reason shown as Secretarial Authority, an RE code of 1, and an SPD code of JFF.

BOARD VOTE:

___x__  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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.  issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), and an RE code of 1 on 9 May 1959; and

	b.  issuing him an Honorable Discharge Certificate.



      _________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)                                         AR20130001603



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ABCMR Record of Proceedings (cont)                                         AR20130001603



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