IN THE CASE OF:	   

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20130004402 


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 the character of his service from general, under honorable conditions to honorable.

2.  The applicant states that with the repeal of the "Don't Ask, Don't Tell (DADT) policy, his discharge should be upgraded to fully honorable.  He was not caught doing anything wrong and he was discharged based solely on being gay.  He adds that he served his country; however, his discharge is preventing him from obtaining veterans' benefits.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 July 1988 for a period of 
4 years.  He was awarded military occupational specialty 94B (Food Service Specialist) and assigned overseas to Germany on 9 November 1988.

2.  On 13 March 1990, a Special Agent of the Criminal Investigation Command (CID) advised the applicant that he was suspected/accused of sodomy and indecent acts with another and that he wanted to question him about the offenses.  The applicant was advised of his rights and he made a voluntary statement.  In his statement, the applicant acknowledged he was bisexual and that while in Germany he had sexual relations with two other men.
3.  On 13 March 1990, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, for homosexuality.

4.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the procedures and rights that were available to him, and the type of discharge he could receive.  He:

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

5.  The immediate commander subsequently initiated separation action against the applicant in accordance with Army Regulation 635-200, chapter 15.

	a.  The separation action shows, on 13 March 1990, the applicant admitted to participation in homosexual activity.

	b.  He noted the applicant was counseled on different occasions since his arrival.  However, there was no record of disciplinary action, nonjudicial punishment, court-martial, or any other derogatory information.

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

6.  The intermediate commander recommended approval of the discharge action with the issuance of a general discharge. 

7.  On 3 April 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, with the issuance of a General Discharge Certificate.

8.  The DD Form 214 he was issued shows he was discharged, on 12 April 1990, under the provisions of Army Regulation 635-200, paragraph 15-3b, based on admission of homosexuality/bisexuality, with a General Discharge Certificate.  He completed 1 year, 8 months, and 23 days of active service.  He was assigned a separation code of "JRB" and a Reentry (RE) code of "3."


9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 15 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.

   b.  Chapter 3, 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.

10.  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.

11.  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 (DRBs) 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 RE 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.

12.  The memorandum also recognized that although Boards for Correction of Military/Navy Records 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 applicant served on active duty from 20 July 1988 to 12 April 1990. During his military service he admitted to being bisexual and having engaged in physical contact with someone of the same sex for the purposes of sexual gratification.  Accordingly, his chain of command initiated separation action against him and he was issued a general 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/bisexuality should now have the authority and reason for discharge changed, and the RE code should normally be changed to an immediately-eligible-to-reenter category (i.e., RE code "1").  In addition, requests to re-characterize the discharge to honorable 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.

4.  The evidence of record shows applicant's discharge was based on a sworn statement made voluntarily by the applicant to a CID agent after being advised that he was suspected/accused of participating in homosexual activity.  The applicant's records are absent evidence of any other misconduct.

5.  Therefore, in view of the foregoing, the applicant's DD Form 214 should be corrected to show he was honorably discharged with "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 all Department of the Army records of the individual concerned be corrected by voiding his 12 April 1990 DD Form 214 and issuing him a new DD Form 214 to show he 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)                                         AR20130004402



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ABCMR Record of Proceedings (cont)                                         AR20130004402



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