IN THE CASE OF: 

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130009322 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his:

* character of service as honorable
* separation code (SPD) as "JFF"
* reenlistment code (RE Code) as "RE-1"
* narrative reason for separation as "Secretarial Authority"

2.  The applicant states he was with a man who took him to the location in which they were "discovered," and until they were caught, he was unaware they were trespassing.  He was a young man and was very frightened because he was emotionally and verbally mistreated and threatened throughout his ordeal with the military police (MP).  In an attempt to cover-up the scandal he tried to claim that he was heavily intoxicated when the incident occurred and that he had an alcohol problem.  However, even though he had been drinking the night of the incident, he was only slightly intoxicated.  In truth, he has suffered humiliation as the direct result of his discharge.  Even though he is now an educated and successful professional, his life and opportunities have been restricted because of the shame he felt regarding one night in Honolulu, HI.  He has spent more than 25 years avoiding any situation where he might need to disclose his veteran status or produce his DD Form 214.  Up until a few months ago, he had no knowledge that he was even eligible for Department of Veterans Affairs (VA) benefits.  Nevertheless, the reason he was discharged was unjust and no longer valid.  His only "crime" was being gay.  He never had any disciplinary or performance problems before or after the incident and would have completed his military service honorably if he had been permitted to continue serving.  He would like closure and acknowledgement that his service to his country was appreciated and honorable.

3.  The applicant provided his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 April 1986.  He held military occupational specialty 76C (Equipment Records and Parts Specialist) and attained the rank/grade of private (PVT)/E-1.

2.  His DA Form 2-1 (Personnel Qualification Record) shows:

* he attended basic combat training at Fort Leonard Wood, MO from 4 April 1986 to on or around 30 May 1986
* he attended advanced individual training from 31 May 1986 to 17 August 1986
* he want on casual leave enroute to his first duty station, in HI, on 
18 August 1986
* he arrived in HI on 5 September 1986
* he was assigned to the 58th MP Company, Schofield Barracks, on 
12 September 1986

3.  His record contains a DA Form 3975 (MP Report), two DA Forms 629 (Receipt for Prisoner or Detained Person), a DA Form 3998 (MP Desk Reference), a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), 
4 DA Forms 2823 (Sworn Statements), and a Final Criminal Investigation Command (CID) Report of Investigation (ROI).  These forms range in date from 
13 September 1986 to 24 September 1986 and show:

	a.  On 13 September 1986, the applicant had been in Hawaii for 8 days when he met a local civilian male, Mr. EMC, at approximately 0200 hours.  After meeting and socializing, he and Mr. EMC went for a walk and Mr. EMC led him up onto the roof of the Army Museum.  

	b.  On or around 0420 hours three MPs on foot patrol noticed what appeared to be the silhouettes of two males on the roof of the Army museum.  The MPs climbed up to the roof to investigate.  When the MPs located the applicant and Mr. EMC both individuals were nude and Mr. EMC was performing oral sodomy upon the applicant's person.  The applicant was later charged with oral sodomy.


4.  His record contains a DA Form 4856-R (General Counseling Form), dated 
19 September 1986, which shows he was counseled because his commander was taking action to discharge him prior to his expiration term of service (ETS), under the provisions of Army Regulation 635-200 (Enlisted Personnel - Personnel Separations) for homosexuality.  This counseling informed him that:

	a.  if he was discharged in accordance with (IAW) chapter 15, he could receive a General Discharge Certificate and his service would be characterized as under honorable conditions (general).  Furthermore, he could expect to encounter substantial prejudice in civilian life.

	b.  he should understand that if his service was characterized as under honorable conditions or under other than honorable conditions, these characterizations were not automatically upgradeable to honorable.  He could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, these boards’ consideration of his case did not imply his discharge would be upgraded.

5.  On 10 October 1986, the applicant's commander notified him that he (commander) was recommending the applicant be discharged under the provisions of paragraph 15-6(b) of Army Regulation 635-200, advised him of his rights, and informed him the least favorable discharge he could receive was a general discharge.  The specific basis for his recommendation was that the applicant engaged in a homosexual act (oral sodomy).  

6.  On 10 October 1986, the applicant acknowledged receipt of his commander's notification letter, 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 requested consulting counsel, elected not to submit statements in his own behalf, and acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

7.  On 10 October 1986, his commander recommended the applicant's discharge under the provisions chapter 15 of Army Regulation 635-200, for engaging in homosexual acts (oral sodomy).  His commander also requested a waiver of rehabilitation requirements.

8.  On 21 October 1986, the separation authority approved the applicant's discharge IAW Army Regulation 635-200, chapter 15, and directed his service be characterized as under honorable conditions (general) and he be issued a General Discharge Certificate.
9.  He was discharged on 31 October 1986.  His DD Form 214 shows he completed 7 months of net active service an contains the following entries in:

* item 24 (Character of Service):  Under Honorable Conditions
* item 25 (Separation Authority):  Army Regulation 635-200, paragraph 
15-3a
* item 26 (SPD Code):  JRA
* item 27 (RE Code):  RE-4
* item 28 (Narrative Reason for Separation):  Engaged in Homosexual Act

10.  There is no evidence to show he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time, this regulation prescribed SPD code JRA as the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

13.  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.

14.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* Narrative Reason for Separation to "Secretarial Authority"
* SPD code to "JFF"
* Characterization to "Honorable"
* RE code to an immediately-eligible-to-reenter category

15.  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 and there were no aggravating factors in the record, such as misconduct.

16.  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.

17.  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 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's record shows that he engaged in a homosexual act and was accordingly discharged on 31 October 1986 IAW paragraph 15-3a of Army Regulation 635-200 by reason of homosexuality with an under honorable conditions discharge. 

2.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

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.  The evidence of record indicates he was discharged for homosexuality.  Additionally, his record did not contain any aggravating factors that would be classified as misconduct by today standards.

5.  In view of the foregoing, he is entitled to the issuance of an Honorable Discharge Certificate and a new DD Form 214 with the characterization of honorable, an SPD code of "JFF," an RE code of "1," and a narrative reason for separation listed 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 individual an Honorable Discharge Certificate and a new DD Form 214 which shows in:

* item 24 the entry "Honorable"
* item 25 the entry "Regulation 635-200, Paragraph 5-3"
* item 26 the entry "JFF"
* item 27 the entry "RE-1"
* item 28 the entry "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)                                         AR20130009322





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ABCMR Record of Proceedings (cont)                                         AR20130009322



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