IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130004561 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he was led to believe that his discharge would be honorable and that he would be eligible for benefits; however, he has since discovered that he is not eligible for any benefits.

3.  The applicant provides a one-page letter explaining his application and a copy of his 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 3 October 1980 for a period of 3 years, training as a petroleum supply specialist and assignment to Europe.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Fort Lee, Virginia before being transferred to Germany on 17 March 1981. 

3.  On 26 July 1982, the applicant’s commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, for unsuitability due to his admission of homosexuality.

4.  After consulting with defense counsel the applicant waived his rights and provided a statement admitting that he came into the Army with homosexual tendencies and stating that he could not control his desires for his fellow          co-workers.

5.  The appropriate authority approved the recommendation for discharge on 
20 August 1982 and directed that he be furnished a General Discharge Certificate.

6.  Accordingly, he was discharged under honorable conditions on 7 September 1982 under the provisions of Army Regulation 635-200, paragraph 15-4b/c due to admission of homosexuality.  He had served 1 year, 11 months, and 5 days of active service and was issued a Reenlistment (RE) Code of “4.”

7.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There was one instance of nonjudicial punishment  being imposed for disobeying a lawful order from a superior noncommissioned officer. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial Authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  
   a.  The above regulation showed that the SPD code of "JML" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Unsuitability – Homosexuality."  

	b.  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 15-3b.

11.  Additionally, the SPD/RE Code Cross Reference Table establishes an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for this reason.

12.  The 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.

13.  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"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

14.  For the above corrections/amendments 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

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  Army regulations, in effect at the time of his discharge, required that a member who stated he/she was homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own statement that he had homosexual tendencies and could not control his desires.  There is no evidence of a further finding that he was not homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  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 may now have their reason for discharge and RE code changed.

4.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in his records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue him a new DD Form 214 with the characterization as honorable, an SPD code of "JFF," an RE code of "1," and a narrative reason for separation as Secretarial Authority.







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 issuing the applicant a new DD Form 214 amending the following items as follows:

* Item 24 (Character of Service) enter "Honorable"
* Item 25 (Separation Authority) enter "Army Regulation 635-200, Paragraph 5-3"
* Item 26 (Separation Code) enter the SPD code of "JFF"
* Item 27 (Reentry Code) enter an RE code of "1"
* Item 28 (Narrative Reason for Separation) enter "Secretarial Authority"



      _______ _  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)                                         AR20130004561





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ABCMR Record of Proceedings (cont)                                         AR20130004561



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