IN THE CASE OF:
BOARD DATE: 4 March 2014
DOCKET NUMBER: AR20130010008
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 removal of the narrative reason for separation from his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states "Don't Ask, Don't Tell (DADT)" was repealed in December 2010.
3. The applicant provides a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 1 April 1999 for a period of 6 years. He completed his training and was awarded military occupational specialty 91E (dental specialist).
2. On 9 February 2000, he submitted a request for discharge for reasons relating to his sexual orientation. On 6 March 2000, the separation authority approved his request under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 15, and directed the issuance of an honorable discharge.
3. On 17 March 2000, he was honorably discharged 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 eligibility (RE) code of "3." He completed 11 months and 17 days of total active service.
4. 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.
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/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 be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.
9. 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and 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.
DISCUSSION AND CONCLUSIONS:
1. 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 applicant's records, such as misconduct.
4. Therefore, the applicant's DD Form 214 should be amended to show his:
* narrative reason for separation as "SECRETARIAL AUTHORITY"
* SPD code as "JFF"
* RE code as "RE-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 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 "RE-1" effective 17 March 2000.
_______ _ 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.
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