IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130004058 


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 his records to show he was medically retired.

2.  The applicant states:

	a.  He was discharged from the Army under the "Don't Ask, Don't Tell (DADT)" policy provision of chapter 15 after 17.5 years of faithful service.  The medical evaluation board (MEB) was approved and he believes he should have been medically retired, not forced out under DADT.  In 2005, a military medical doctor recommended his consideration by an MEB which was approved.  A physical evaluation board (PEB) was recommended.  He was then discharged under DADT.

	b.  With the repeal of DADT, justice should be granted.  He has always felt the military wronged him, but he did not put up a fight and just went along with the decision.  He feels the medical doctor's request was ignored and he was booted out with no benefits from the Army, only from the Department of Veterans Affairs.

3.  The applicant provides:

* DD Form 689 (Individual Sick Slip)
* separation package
* MEB Narrative Summary
* Disciplinary Action Certificate
* DA Form 3947 (MEB Proceedings)
* DA Form 3349 (Physical Profile)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* excerpts from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005

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 21 September 1988.  He completed training and was awarded military occupational specialty (MOS) 72D (chemical operations specialist).  He was promoted to pay grade E-6 on 1 July 1997.

3.  He provided a copy of a DD Form 689, dated 7 May 2005, which contains the remarks, "SM [service member] cannot undergo Chapter 15 without MEB.  Contact XXX-XXX (PEBLO [PEB Liaison Officer]) for info."

4.  A DA Form 4856-E (Developmental Counseling Form), dated 24 September 2001, shows the applicant received counseling on the Department of the Army and command policy regarding his responsibilities as a result of testing positive for the human immunodeficiency virus (HIV) antibody.

5.  A DA Form 4856-E, dated 23 April 2002, shows the applicant received counseling based on his second positive HIV antibody test and his responsibilities to refrain from unprotected sexual relations.

6.  Two DA Forms 4856-E, dated 2 July 2003 and 23 June 2004, show the applicant received counseling on the Department of the Army and command policy regarding his responsibilities as a result of testing positive for the HIV antibody.

7.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 21 January 2005, shows an investigation was initiated to determine whether the applicant had inappropriate sex, contracting a sexually-transmitted disease.

8.  On 20 September 2005, the applicant's company commander notified the applicant of his intent to initiate separation action against him for homosexual conduct in accordance with Army Regulation 635-200, chapter 15, with an honorable discharge.  The specific reasons for the discharge were that the applicant stated he had engaged in a homosexual act.  He advised the applicant of his rights.

9.  On 20 September 2005 after consulting with counsel, the applicant acknowledged receipt of the contemplated action.  He was advised of the basis for the separation action for homosexual conduct, the type of discharge he could receive, and the procedures and rights available to him.  He waived his rights and elected not to submit a statement on his own behalf.

10.  On 21 September 2005, the applicant's battalion commander recommended approval of the applicant's discharge under Army Regulation 635-200, chapter 15.

11.  He also provided and his records contain an MEB Narrative Summary, dated 24 October 2005, which stated:

	a.  The applicant had a history of HIV disease that was diagnosed in September 1992.  He was started on antiretroviral therapy which he had been on since 1995.  Contact was presumed to be from sexual activity.  He had developed considerable resistance since starting his therapy and his most recent regimen made up of antiretroviral therapy was started based on his recent resistance testing in November 2003.  His only complication had been a recent diagnosis of syphilis which had been treated with penicillin G benzathine and he had never had any documented history of opportunistic infections.  The applicant continued to have increasing resistance to his medications and had a significant increase in the viral load to about 316,000 in May of that year.  This medical evaluation was instituted due to his evidence of possibly-progressive immunodeficiency syndrome.

	b.  The applicant had been treated over the last 10 years with multiple antiviral medications and had continued to show evidence of progression in his disease.  Although there had been no documented opportunistic infection, it was felt that his multidrug resistance would present a problem in the future.  He had been able to perform the duties of his MOS, but had required multiple visits for infectious disease management.  The applicant was referred to a PEB for further evaluation.

	c.  His diagnoses were:

		(1)  HIV infection – in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-7h, he did not meet retention criteria.

		(2)  disc herniation – in accordance with Army Regulation 40-501, paragraph 3-39e, he met retention criteria for that diagnosis.

		(3)  syphilis – in accordance with Army Regulation 40-501, 
paragraph 3-44, he met retention criteria for that diagnosis.

12.  He further provided a copy of a Disciplinary Action Certificate, dated 26 October 2005, which indicated:

* he was not pending elimination from the service under provisions of the Uniform Code of Military Justice
* he had not been selected for release under the Qualitative Management Program
* he was not being mandatorily retired because of length of service
* he was not twice selected for promotion to the next higher grade
* he had not completed an application for length of service retirement
* he was scheduled to be separated from the service on 31 May 2010
* he was not a member of the Armed Services on 24 September 1975 and was not under a binding written agreement to become such a member
* he did not have a bar to reenlistment
* he had not been reduced in grade

13.  On 7 November 2005, an MEB convened and considered the applicant's medically unacceptable condition of HIV in accordance with Army Regulation 
40-501, paragraph 3-7h.  The MEB recommended his referral to a PEB.

14.  The applicant's record is void of the approval date of the MEB and evidence of the applicant's agreement with the findings and recommendations of the MEB.

15.  On 18 November 2005, he was assigned a permanent physical profile for HIV, disc herniation, and syphilis.  The DA Form 3349 showed he needed an MEB/PEB.

16.  On 21 November 2005, he requested a review of his medical case by the U.S. Army Maneuver Support Center Commanding General (CG) and referral to a PEB for medical separation.  He stated:

	a.  The Commander, Headquarters and Headquarters Detachment, 3rd Chemical Brigade, failed to provide thorough counseling once he arrived at his command.  He arrived on 1 June 2004 and counseling was not signed or initiated until February 2005.  The commander, realizing that he failed to sign his initial counseling, asked him if he would have a problem with him backdating it, and he said, "Go ahead, sir."

	b.  While the commander questioned him about a medical condition, he violated the DADT policy.  He asked, "was the person that [who] infected you male or female?" thus using this information to initiate chapter 15 proceedings.  It was conceivable that a person could draw a conclusion on how one would contract this virus by being gay/bi-sexual and others may think of an intravenous drug user.  He felt that it was irrelevant whether the person was male or female and the commander's line of questioning was inappropriate and crossed the boundary, concluding that it was a ploy to eliminate him from government service.

	c.  For the last 17 years he had served his country with dignity and respect.  He felt this unfortunate incident would halt his continued service.  During the past 13 years he had received world-class medical service and tremendous support from past commanders.  His confidentiality had been severely compromised during that case.  He was ready to put the personal and embarrassing experiences behind him and get on with his life.  He requested to be medically separated.  Separation would be in his best interests and the military's.  Medical separation would allow continued care by the medical staff at Brooke Army Medical Center and the Department of Veterans Affairs.

17.  On 8 November 2005, the applicant's brigade commander recommended approval of the applicant's discharge under Army Regulation 635-200, chapter 15.  He stated the applicant voluntarily stated he had a homosexual orientation, had engaged in homosexual conduct in the past, and intended to engage in homosexual conduct in the future.

18.  On 24 January 2006 after review of the MEB's findings and separation action under the provisions of Army Regulation 635-200, chapter 15, the CG directed processing the applicant's case under administrative separation provisions in lieu of medical disability channels.

19.  On 30 January 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, and directed the issuance of an honorable discharge.

20.  He was honorably discharged in pay grade E-6 on 24 February 2006 under the provisions of Army Regulation 635-200, paragraph 15-3a, by reason of homosexual acts.  He was assigned a separation program designator code of JRA and a reentry eligibility code of 4.  He completed 17 years, 5 months, and 4 days of net active service with no lost time.

21.  Army Regulation 635-200, in effect at the time, prescribed the policies for administrative separation of enlisted Soldiers.

	a.  Paragraph 1-33 provided that when an attending medical officer determined that a Soldier being processed for administrative separation under chapter 15 did not meet the medical fitness standards for retention, he/she would refer the Soldier to an MEB.  The administrative separation proceedings would continue, but final action by the separation authority would not be taken pending the results of the MEB.

	b.  Paragraph 1-33(1) provided that if the MEB findings indicated referral to a PEB was warranted for disability processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), copies of the approved MEB proceedings would be furnished to the Soldier's general court-martial convening authority and unit commander.  The general court-martial convening authority could direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice had not been initiated and other circumstances of the case warranted disability processing instead of further processing for administrative separation.

	c.  Chapter 15 provided that 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.

22.  DADT 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.

23.  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.  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 (the change should be to "Secretarial Authority" and assign separation program designator (SPD) code JFF)
* characterization of the discharge to honorable
* the reentry eligibility code to an immediately-eligible-to-reenter category

24.  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

25.  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.

26.  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.

27.  Army Regulation 635-40, in effect at the time, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 
40-501, chapter 3, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  The Physical Disability Evaluation System assessment process involves two distinct stages:  the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from September 1988 to February 2006.  In September 2001, he was first counseled on the Department of the Army and command policy regarding his responsibilities as a result of testing positive for the HIV antibody.  He was again counseled in April 2002 (part of which informed him of his responsibility to refrain from unprotected sexual relations) based on his second positive HIV antibody test.  He was again counseled in 2003 and 2004 regarding his responsibilities as a result of testing positive for the HIV antibody.  In January 2005, after he contracted a sexually-transmitted disease, an investigation was opened into allegations of him having inappropriate unprotected sex.

2.  On 20 September 2005, the applicant's company commander initiated action to separate him for homosexual conduct under Army Regulation 635-200, chapter 15, with an honorable discharge.  The specific reason was that the applicant stated he had engaged in a homosexual act.

3.  An MEB Narrative Summary, dated 24 October 2005, shows he was diagnosed with HIV in September 1992 and he had developed considerable resistance since starting the therapy and he had a recent diagnosis of syphilis.  He continued to have increasing resistance to his medications and the medical evaluation was instituted due to his evidence of possibly-progressive immunodeficiency syndrome.  He had been able to perform the duties of his 

MOS, but had required multiple visits for infectious disease management.  His HIV infection diagnosis was determined not have met retention criteria.

4.  On 7 November 2005, an MEB convened and found the applicant's condition of HIV was medically unacceptable and recommended his referral to a PEB.

5.  It appears that he met the conditions for a PEB, but his administrative separation was directed under the provisions of Army Regulation 635-200, chapter 15.  It appears the CG's determined that the applicant violated the instructions he was given to refrain from unprotected sexual relations and that is why he approved the applicant's administrative separation instead of further disability processing.

6.  On 24 January 2006 after a review of the applicant's medical records and chapter 15 separation proceedings, the CG directed processing the applicant's case under administrative separation provisions in lieu of medical disability channels.  Accordingly, he was honorably discharged on 24 February 2006.

7.  Although DADT was repealed effective 20 September 2011, the DOD guidance does not mean a change in the reason for discharge is not automatic.  Here, the applicant violated a safe-sex order, evidence of misconduct that weighs against a change to the reason for discharge under the DOD guidelines.  Accordingly, the available evidence does not warrant a change to the reason for discharge to Secretary Authority or to a medical discharge.  His discharge occurred prior to the DADT policy and he was issued an honorable discharge.  Without evidence to the contrary, it appears his discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  This discharge properly took precedence over his disability processing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20130004058



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ABCMR Record of Proceedings (cont)                                         AR20130004058



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