BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008474 


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 the narrative reason for her separation be changed to "Convenience of the Government."

2.  The applicant states that she applied for a U.S. Army Criminal Investigation Command (CID) position and while awaiting her commander's signature for release it came time for her to be interviewed by her commander and she was questioned her about her lifestyle of homosexuality.  She responded with a "yes" and several days later was presented with discharge papers which she signed under duress.  She goes on to state that new laws have since been established and the old laws have been expelled.  Accordingly, she desires to have her records corrected. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 March 1994 for a period of  2 years and 27 weeks and training as a track vehicle repairer.  She completed her basic training at Fort Jackson, South Carolina and her advanced individual training at Aberdeen Proving Ground, Maryland before being transferred to Korea on 20 October 1994 for her first and only assignment.

2.  On 8 March 1995, nonjudicial punishment was imposed against her for making false official statements.

3.  On 13 March 1995, the applicant prepared an affidavit with the assistance of counsel in which she admitted that she was a lesbian and that she had not committed any homosexual acts or propositioned anyone to commit such acts since entering the Army. 

4.  On 12 May 1995, the applicant's commander notified her that she was initiating action to discharge her from the service under the provisions of Army Regulation 635-200, chapter 15 for homosexuality.  She cited the applicant's admission of homosexuality as the basis for her recommendation.

5.  After consulting with defense counsel the applicant waived all of her rights.

6.  On 16 May 1995, the appropriate authority approved the recommendation for discharge and directed that she be furnished a General Discharge Certificate.

7.  However, on 31 May 1995 she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, due to homosexual admission.

8.  Paragraph 15-3(5b) of Army Regulation 635-200, in effect at the time, stated a Soldier would be separated if the Soldier had stated that he or she was a homosexual or bi-sexual, unless there was a further finding that the Soldier was not a homosexual or bisexual.

9.  Table 2-2 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Personnel Separations, Separation Documents), in effect at the time, established an RE code of "4" as the proper RE code to assign Soldiers who were separated with a separation code of "JRB."

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.  The SPD code of "JRB" as shown on the applicant's DD Form 214 specified the narrative reason for discharge as "Admission of homosexuality/bisexuality."

11.  The DADT policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members regarding their sexual orientation.  Under that policy, service members could 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.

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. 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" (SPD code JFF))
* characterization of the discharge to honorable
* reentry eligibility code to an immediately-eligible-to-reenter category

13.  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

14.  The memorandum further states that although each request must be evaluated on a case-by-case basis, award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.

15.  The memorandum also recognized that although Correction Boards have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the discharge review board, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT or prior policies are not warranted.  Although DADT was 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 her discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on her own sworn statement that she was a homosexual.  There is no evidence of a further finding that she was not a 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 available record contains no evidence of procedural or other errors that would have jeopardized her 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 should now have their reason for discharge and RE code changed.

4.  She received NJP on one occasion.  The NJP was not related to the reason she was processed for discharge and there is no established pattern of misconduct in this case.  Therefore, there are no aggravating factors that would indicate misconduct.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 issuing the individual a new DD Form 214 changing the following items in:

* Item 25 enter "Regulation 635-200, Paragraph 5-3"
* Item 26 enter the SPD code of "JFF"
* Item 27 enter an RE code of "1"
* Item 28 enter "Secretarial Authority

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 the narrative reason for separation to "Convenience of the Government."   



      __________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)                                         AR20130008474



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008474



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1