IN THE CASE OF:	  

		BOARD DATE:  4 March 2014

		DOCKET NUMBER:  AR20130009756 


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 an upgrade of his discharge to honorable.

2.  The applicant states the punishment was too harsh and is undeserved based on the quality of his work performance.  He further states that today's military standards would yield a more lenient discharge in the face of the facts.

3.  The applicant provides 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.  After having had prior service, on 27 September 1978 the applicant enlisted in the Regular Army for a period of 3 years.

3.  On 13 January 1981, his immediate commander notified him of his intent to initiate separation action against him for homosexuality in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The specific reason for the discharge was that the applicant admitted to being homosexual.

4.  On 15 January 1981, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He also acknowledged:

* he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood he could be ineligible for many or all benefits as a veteran under both State and Federal law as a result of the issuance of a discharge under other than honorable conditions

5.  Subsequent to this acknowledgement, his commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of homosexuality.  The commander stated the applicant admitted to being engaged in homosexual relations since 1973.  He stated under sworn oath that he had sexual relations with another male individual on two previous occasions on a military reservation and of having numerous homosexual relations while stationed at Fort Hood.  He has no previous convictions by court-martial.  The commander recommended a waiver of the counseling and rehabilitative transfer.

6.  On 12 February 1981, the major general in command directed the applicant's review by an Administrative Discharge Board.

7.  On 13 April 1981, an Administrative Discharge Board determined the applicant should be discharged for unsuitability and not for misconduct.

8.  On 5 May 1981, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, by reason of "engaged, attempted to engage in, or solicited another to engage in homosexual act(s)" with the issuance of a General Discharge Certificate.  Accordingly, he was discharged on 22 May 1981.

9.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 15-4a, and his service was characterized as under honorable conditions.  He completed 2 years, 7 months, and 16 days of active service.  He was assigned separation program designator (SPD) code JKC and reentry eligibility (RE) code 3.

10.  Army Regulation 635-200, chapter 15, in effect at the time, prescribed the current 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 by using force, coercion, or intimidation, with a person under 16 years of age, with a subordinate, openly in public view, for compensation, aboard a military vessel or aircraft, or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier's service.

11.  The "Don't Ask, Don't Tell (DADT)" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may 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.  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 to "Secretarial Authority"
* separation program designator (SPD) code to JFF
* character of service to honorable
* RE 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 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.  The applicant admitted to being homosexual.  A subsequent investigation confirmed his homosexuality but determined no criminal misconduct was committed.  His chain of command initiated separation action against him.

2.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  The under honorable conditions (general) character of service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

3.  Regardless, 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 service characterizations changed.  The evidence of record shows the applicant's records are void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, his overall record of service merits an upgrade to a fully honorable character of service by reason of "Secretarial Authority" with assignment of SPD code JFF and RE code 1.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 voiding his DD Form 214 for the period ending 22 May 1981 and issuing him a new DD Form 214 to show he was discharged by reason of "Secretarial Authority" with his service characterized as honorable and assignment of SPD code JFF and RE code 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)                                         AR20130009756



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ABCMR Record of Proceedings (cont)                                         AR20130009756



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