BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130010256 


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 that his general discharge be upgraded to honorable.  

2.  The applicant states he is and has always been heterosexual.  He regrets and he is ashamed of the circumstances surrounding his separation from the U.S. Army.  

3.  The applicant provides a DD Form 214 (Report of Separation 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.  The applicant enlisted in the Regular Army on 4 January 1967.

3.  On 25 April 1967, he accepted nonjudicial (NJP) punishment for being absent without leave (AWOL) for one day.  

4.  A U.S. Army Criminal Investigation Division (CID) Report of Investigation indicates the applicant was under investigation for engaging in homosexual behavior.  As part of the investigation, the applicant was interviewed by a CID investigator.  During the interview, the applicant admitted to engaging in homosexual acts with another Soldier.  

5.  On 23 June 1967, the applicant's immediate commander notified him of his intention to separate him from the Army under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality) for alleged homosexual relations with another Soldier.  

6.  On 29 June 1967, he was evaluated by the Mental Hygiene Consultation Service.  He was diagnosed with "adjustment reaction of adolescence, late, severe, manifested by passive rebelliousness to authority, role identity confusion, and psychosexual confusion with homosexual behavior (by his own admission)."

7.  On 30 June 1967, he consulted with legal counsel and he was advised of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He also acknowledged he understood that as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 9 August 1967, the approval authority approved the separation action under the provisions of Army Regulation 635-89 and directed the applicant be furnished an Undesirable Discharge Certificate.  

9.  On 16 August 1967, he was discharged accordingly with an under other than honorable conditions discharge.  He had completed 7 months and 13 days of active service and he was assigned Separation Program Number (SPN) 257 (Unfitness - Homosexual Acts) and a reenlistment code (RE) of 4.  



10.  On 21 July 1977, his discharge was upgraded to general, under honorable conditions under the Department of Defense (DoD) Special Discharge Review Program (SDRP).  He was issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflecting the discharge upgrade. 

11.  On 11 July 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge upgrade under the SDRP but did not affirm the discharge upgrade.  The majority of the Board voted not to affirm the applicant's upgrade.  However, the minority of the Board voted to affirm the applicant's upgrade based on the absence of other acts of indiscipline other than nonjudicial punishment for a short one-day period of absence.  

12.  Army Regulation 635-89, in effect at the time, governed separation of homosexuals.  It stated personnel would be discharged under other than honorable conditions if the case fell within Class II.  Class II consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

13.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under Don't Ask, Don't Tell" (DADT) or prior policies.

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

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

15.  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

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/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is 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.  His discharge proceedings were conducted in accordance with law and regulations in effect at the time.  His characterization of service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

2.  Nevertheless, the law has since been changed, and current standards are now applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed.

3.  The applicant's record shows he accepted NJP for being AWOL for one day.  The record is void of any other adverse counseling statements or disciplinary actions.  

4.  In view of the foregoing, it would be appropriate to grant him an honorable discharge and issue him a new DD Form 214 with the reason for separation shown as Secretarial Authority, an RE code of 1, and an SPD code of JFF.







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:

	a.  issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), and an RE code of 1 on 16 August 1967; and

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 16 August 1967.




      _______ _  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)                                         AR20130010256



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ABCMR Record of Proceedings (cont)                                         AR20130010256



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