IN THE CASE OF:	  

		BOARD DATE:  4 February 2014

		DOCKET NUMBER:  AR20130008128 


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 his: 

	a.  separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to "JFF"; 

	b.  reenlistment (RE) code be changed to RE-1J; and

	c.  narrative reason for separation be changed to Secretarial Authority.

2.  The applicant states:

* he was honorably discharged under Don't Ask, Don't Tell (DADT) on 
25 October 2001
* pursuant to the DADT Repeal Act of 2010 his RE code and narrative reason for separation should be changed

3.  The applicant provides:

* Under Secretary of Defense Memorandum, dated 20 September 2011
* DD Form 214  





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 10 August 2000 for a period of 5 years.  He completed his training and was awarded military occupational specialty 95B (military police).  

3.  The facts and circumstances surrounding his discharge are not contained in the available records.  However, his DD Form 214 shows he was honorably discharged on 25 October 2001 under the provisions of Army Regulation
635-200, paragraph 15-3b, for homosexual admission with a separation program designator (SPD) code of "JRB," and a reentry (RE) code of "4."  He completed 1 year, 2 months, and 16 days of total active service.  

4.  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, 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.

5.  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



6.  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

7.  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.

8.  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.

9.  The applicant provided the Under Secretary of Defense memorandum, dated 
20 September 2011, which states effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the RE code to an immediately-eligible-to-reenter category (the new RE code should be RE code 1J).

10.  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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter 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.  RE-1J is not a valid Army RE code.




DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary it is presumed that 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 record, such as misconduct.

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

* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code to an immediately-eligible-to-reenter category "1"

5.  The applicant's request to change his RE code to RE-1J and the Under Secretary of Defense memorandum which states the new RE code should be RE-1J were noted.  However, RE-1J is not a valid Army RE code and it may have been an administrative oversight when the memorandum was prepared.  The governing regulation states RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated (an immediately-eligible-to-reenter category).  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 him a new DD Form 214 to show he was discharged with an honorable characterization of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1" effective 25 October 2001.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE code to 
RE-1J.  



      _______ _  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)                                         AR20130008128



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ABCMR Record of Proceedings (cont)                                         AR20130008128



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