IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130002184 


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 her general discharge to honorable.

2.  The applicant states:

* she wants her discharge amended per the Repeal Act of 2010
* upon her discharge in 1982, she was told by the company commander her discharge could be changed to honorable after some years had passed
* she was an excellent Soldier
* upon entering the military she was asked to consider going to Officer Candidate School since she had a bachelor's degree
* she declined because she didn't want to command Soldiers who had years of service without having gotten her feet wet with enlisted duty first
* her intentions were to pursue a commission at a later date after having served a couple of years
* she received awards, she had a Secret clearance, and she was appointed as the company commander's driver
* she had an excellent record prior to this incident

3.  The applicant provides a copy of her 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.  The applicant enlisted in the Regular Army on 15 September 1980 for a period of 3 years.  She completed her training and was awarded military occupational specialty 91B (medical specialist).

3.  On 2 March 1982, her command initiated separation proceedings against her for homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15.

4.  On 3 March 1982, she consulted with counsel, acknowledged she might encounter substantial prejudice in civilian life if a general discharge were issued to her, and elected to submit a statement in her own behalf; however, this statement is not available.

5.  On 17 March 1982, the separation authority approved the recommendation and directed the issuance of a general discharge.

6.  On 29 March 1982, she was discharged under the provisions of Army Regulation 635-200, paragraph 15-4d, for unsuitability – homosexuality.  She completed 1 year, 6 months, and 15 days of total active service.  She was issued a General Discharge Certificate and assigned a separation program designator (SPD) code of "JML," a character of service of "under honorable conditions," and a reentry eligibility (RE) code of "4."

7.  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 "Don't Ask, Don't Tell (DADT)" or prior policies.

8.  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" and the SPD code to JFF
* characterization of the discharge to honorable
* RE code to an immediately-eligible-to-reenter category

9.  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

10.  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.

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 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 be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.

2.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reasons for discharge and, when appropriate, characterizations of service changed.

3.  There were no aggravating factors in the applicant's records indicating misconduct.

4.  Therefore, the applicant's DD Form 214 should be amended to show her:

* character of service as "Honorable"
* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code as "RE-1"

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 is 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 voiding the previously-issued DD Form 214 and issuing her a new DD Form 214 showing she was discharged with an honorable character of service by reason of 


"Secretarial Authority" with an SPD code of "JFF" and an RE code of "RE-1" effective 29 March 1982.



      ___________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)                                         AR20130002184



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ABCMR Record of Proceedings (cont)                                         AR20130002184



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