IN THE CASE OF:	  

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130010241 


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, in effect, reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/pay grade as specialist (SPC)/E-4 and his reentry eligibility (RE) code as an immediately-eligible-to-reenter code.  As a new issue, he requests correction of the narrative reason for his separation and issuance of a new DD Form 214.

2.  He states it has been a challenge for him to be accepted for certain jobs due his narrative reason for separation and submission of his DD Form 214 is required to verify his military service.  The "Don't Ask, Don't Tell (DADT)" policy concerning homosexual conduct in military service was repealed on 20 September 2011 and the relevant boards will now consider changes in the reason for discharge, character of service, and RE code.  He also states his ending pay grade was E-4, not E-2.

3.  He provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* DA Form 4187 (Personnel Action)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100019670 on 7 October 2010.

2.  The applicant provided a new argument that will be considered.

3.  On 29 May 2002, the applicant enlisted in the Regular Army.  He completed initial entry training and he was awarded military occupational specialty 92G (Food Service Specialist).

4.  A DA Form 2823 (Sworn Statement), dated 26 March 2004, shows SPC R____ C. C____ stated, in part, the applicant had left a note on his door that he took as a sexual advance.  SPC R____ C. C____ stated he reported the incident to the first sergeant and gave the note to him.

5.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 27 March 2004, shows the applicant was advised of his rights pertaining to being questioned regarding his suspected homosexual conduct.  This form shows his grade as "PV2 [private two/E-2]."

6.  A DA Form 2823, dated 27 March 2004, shows the applicant responded "Yes" to the question:  "Have you attempted to engage in homosexuality [sic] activities since we have been deployed to OPERATION IRAQI FREEDOM?"  He responded "No" to questions regarding whether he had conducted homosexual activity while deployed in support of Operation Iraqi Freedom.

7.  In a memorandum for record, dated 4 April 2004, subject:  Commander's Inquiry for PV2 (Applicant) Attempting to Have Homosexual Relations with Another Male Soldier, the applicant's commander stated he immediately sent the case to the brigade legal office to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-15, based on the applicant's "Yes" answer regarding attempted homosexual relations.

8.  On 4 May 2004, the applicant's commander informed him he was initiating action to separate him for homosexual conduct under the provisions of Army Regulation 635-200, chapter 15, and advised him of his rights.  His commander stated he was recommending an honorable discharge.

9.  On 5 May 2004, the applicant issued a memorandum for record, subject:  Trial Defense Service Waiver of Rights in Administrative Separation Proceedings under Army Regulation 635-200, Chapter 15 (Discharge for Homosexual Conduct) for Private (E2) (Applicant), waiving his right to consult with counsel and his right to see counsel at the Trial Defense Service.  His signature block in this memorandum shows his rank as "PV2."

10.  On 9 May 2004, the separation authority approved the recommendation to separate the applicant under the provisions of Army Regulation 635-200, chapter 15, and directed the issuance of an Honorable Discharge Certificate.

11.  His records contain two Enlisted Record Briefs, dated 17 April 2004 and 19 May 2004, that show his rank as "PV2" and his date of rank as 1 March 2004.  Section III (Service Data) of each form shows the following dates of rank:

* PVT – 29 May 2002
* PV2 – 1 March 2004
* PFC (private first class) – 1 February 2003
* SPC – 1 March 2004

12.  On 2 June 2004, Headquarters, III Corps and Fort Hood, Fort Hood, TX, issued Orders 154-0266 reassigning the applicant to the U.S. Army Transition Point effective 10 June 2004.  The orders show his rank as "PV2."

13.  On 10 June 2004, he was honorably discharged in accordance with the separation authority's decision.  His DD Form 214 shows in:

* item 4a (Grade, Rate, or Rank) – "PV2"
* item 4b (Pay Grade) – "E2"
* item 25 (Separation Authority) – "AR 635-200, PARA 15-3B"
* item 26 (Separation Code) – "JRB"
* item 27 (Reentry Code) – "4"
* item 28 (Narrative Reason for Separation) – "HOMOSEXUAL ADMISSION"

14.  On 17 September 2010, the Army Discharge Review Board notified the applicant that his request for a change in the character of and/or reason for his discharge was denied.

15.  In ABCMR Docket Number AR20100019670, the ABCMR recommended denial of the portion of his application pertaining to changing the rank, pay grade, separation program designator (SPD) code, and RE code shown on his DD Form 214.  The ABCMR recommendation was approved on 8 October 2010.

16.  During the processing of his original application, the Defense Finance and Accounting Service (DFAS) reviewed the applicant's pay records and provided the following pay grade history:
* E-1 – 29 May 2002-28 November 2002
* E-2 – 29 November 2002-9 February 2003
* E-3 – 10 February 2003-19 May 2003
* E-1 – 20 May 2003-29 February 2004
* E-4 – 1 March 2004-3 March 2004
* E-2 – 4 March 2004-10 June 2004

17.  He provided a DA Form 4187, dated 8 June 2004, showing he was advanced to SPC with a date of rank and effective date of 1 March 2004.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of the version in effect at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.

19.  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.

20.  This 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

21.  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

22.  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.

23.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparation of the DD Form 214.  It states for item 4, enter the active duty grade or rank and pay grade at the time of separation from the Enlisted Record Brief.

DISCUSSION AND CONCLUSIONS:

1.  While he briefly held the rank/pay grade of SPC/E-4, this is not the rank/pay grade he held when he was discharged.  The available records appear to show a history of promotions and reductions; however, these records clearly show he held the rank/grade of PV2/E-2 throughout his discharge processing.  This is the rank/pay grade he held at the time of his discharge as shown on his Enlisted Record Brief and this rank/pay grade is properly entered on his DD Form 214.

2.  The applicant was honorably discharged under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission.  He was assigned a separation code of JRB and an 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.

3.  The law has since been changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code, and RE code changed.

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

* item 26 – "JFF"
* item 27 – "1"
* item 28 – "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 partial amendment of the ABCMR's decision in Docket Number AR20100019670, dated 7 October 2010 and to warrant granting relief in regard to his new issue.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 showing in:

* item 26 – "JFF"
* item 27 – "1"
* item 28 – "SECRETARIAL AUTHORITY"

2.  The Board further determined 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 his final pay grade.




      _____________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)                                         AR20130010241



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010241



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1