IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130011144 


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, correction of the reason and authority for her discharge and an upgrade of her characterization of service.

2.  The applicant states:

* she was in the military before Don't Ask, Don't Tell (DADT)
* she was given an Article 15 for being a homosexual
* homosexuals were treated badly at the time
* her family did not want her to fight the issue at the time
* 64 Soldiers in her company were discharged
* the Criminal Investigation Command went on a witch hunt
* she was a good Soldier and she should not have been discharged 
* she was on her way to Germany when the incident happened

3.  The applicant provides a letter from the Army Review Boards Agency and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 November 1978.  She completed training and was awarded military occupational specialty 95B (Military Police).

2.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 13 March 1979, for disobeying orders during the period 20 through 22 February 1979
* 16 April 1979, for being absent without leave from on or about 31 March 1979 until on or about 3 April 1979
* 7 May 1979, for committing an indecent, lewd, and lascivious act with another female on or about 17 March 1979

3.  The complete facts and circumstances of her discharge are not available for review.

4.  On 22 June 1979, she was discharged after completing 6 months and 21 days of net active service.  Her DD Form 214 (Report of Separation from Active Duty) shows in:

* Item 9c (Authority and Reason) - Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33a(3), (other misconduct, homosexual acts) Separation Program Designator (SPD) Code "JKC" (misconduct, homosexual acts)
* Item 9e (Character of Service) - Under Other Than Honorable Conditions
* Item 10 (Reenlistment Code) – RE-4

5.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within the ADRB's 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 of the regulation in effect at the time established policy and prescribed procedures for separation of enlisted Soldiers for misconduct.  Paragraph 14-33a stated Soldiers were subject to separation for acts of misconduct. 

	d.  Paragraph 14-33a(3) (Homosexual Acts) states homosexual acts are bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act.  Members who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication normally will not be processed for discharge because of homosexual acts.  However, if other conduct is involved, members may be considered for discharge for other reasons set forth in this regulation.

7.  The Under Secretary of Defense for Personnel and Readiness memorandum, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, dated 20 September 2011, 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.

8.  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"
* Reenlistment Code to an immediately-eligible-to-reenter category

9.  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.

10.  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.


11.  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.  Therefore, 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was accomplished in accordance with regulations then in effect with no violations of any of her rights.  Accordingly, the type of discharge was appropriate under the circumstances.

2.  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 due to homosexuality should now have their reason for discharge and characterizations of service changed.

3.  Although the applicant had adverse disciplinary action in the form of three instances of nonjudicial punishment, her commander chose to separate her for homosexuality rather than misconduct.

4.  Accordingly, in view of the current standards for discharges issued for homosexuality, it would be appropriate to correct the inequity and to issue the applicant an honorable discharge under secretarial authority and to issue her a SPD code of "JFF."

5.  In view of the foregoing, the applicant's records should be corrected as recommended below.







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 her a new DD Form 214 showing she was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD:  JFF), with a reenlistment code of 1 on 22 June 1979 and 

	b.  issuing her an Honorable Discharge Certificate, dated 22 June 1979.




      _______ _  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)                                         AR20130011144



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ABCMR Record of Proceedings (cont)                                         AR20130011144



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