BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130009128 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable characterization of service and a more favorable reason for his separation.

2.  The applicant states, in effect, Don't Ask, Don't Tell (DADT) is no longer in force and he served his country honorably.

3.  The applicant provides a letter of reference from his former noncommissioned officer.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 July 1984.  

2.  His record shows that during his period of service he accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully and unlawfully altering a military identification card.

3.  He underwent a mental status evaluation on 30 September 1986 after he admitted to his commander that he was a homosexual and wanted to get out of the Army.

4.  On 8 October 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for homosexuality.  The discharge was specifically recommended for homosexual admission during his current term of service.  

5.  On an unknown date, the applicant acknowledged receipt of the commander's intent to separate him for homosexual admission.  He waived his right to consult with legal counsel and elected not to submit a statement on his own behalf.

6.  On an unknown date, the separation authority approved the applicant's discharge under the provisions of paragraph 15-3 of Army Regulation 635-200 and directed issuance of an under honorable conditions (general) discharge.

7.  He was discharged on 5 December 1986, after completing 2 years, 4 months, and 26 days of net active service during this period.  The DD Form 214 he was issued shows in:

* item 24 (Character of Service) - Under Honorable Conditions (General)
* item 25 (Separation Authority) - Army Regulation 635-200, paragraph 15-3
* item 26 (Separation Code) - JRB
* item 27 (RE Code) - 4
* item 28 (Narrative Reason for Separation) - Admission of Homosexuality

8.  On 21 February 2007, the Army Board for Correction of Military Records denied his petition to change his reenlisment code.

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.  Under Secretary of Defense (Personnel and Readiness), Washington, D.C., 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.

11.  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 did accept NJP for a minor offense; however, he was discharged under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission.  He received a separation code of JRB and RE code of 4.  His discharge proceedings were conducted in accordance with law and regulations in effect at the time and his rights were protected throughout the discharge process.

2.  The law has since changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code, RE code and, when appropriate, characterization of service changed. 

3.  In view of the changes in the law, it is now appropriate to issue him a new DD Form 214 showing in:

* item 24 (Character of Service) - Honorable
* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

4.  In view of the above, his request should be granted.

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 the Department of the Army records of the individual concerned be corrected by:

	a.  voiding his current DD Form 214 for the period ending 5 December 1986 and
	
   b.  issuing him a new DD Form 214 for the period ending 5 December 1986 to show he was honorably discharged by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "RE-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)                                         AR20130009128





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ABCMR Record of Proceedings (cont)                                         AR20130009128



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