BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011615 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 24 (Character of Service) an honorable vice uncharacterized characterization of service  
* item 25 (Separation Authority) Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 5-3 vice Army Regulation 635-200, paragraph 15-3b
* item 26 (Separation Code) JFF vice JRB
* item 27 (Reentry (RE) Code) 1J (correctly known as RE code 1) vice 4
* item 28 (Narrative Reason for Separation) Secretarial Authority vice Homosexual Admission

2.  The applicant defers his statement to his counsel.

3.  The applicant provides a statement from his counsel.

COUNSEL'S STATEMENT:

Counsel states:

	a.  The applicant served in the Regular Army before being administratively separated in 1996 while the "Don't Ask, Don't Tell" (DADT) policy was in place.  He was separated due to homosexual admission and received a separation code of JRB and an RE code of 4.  He received an uncharacterized discharge because of the short period of his service.

	b.  Since that time, the military has changed its policy with regard to homosexual conduct in the military.  Through the repeal of DADT, it has acknowledged that a Soldier's sexual orientation has no bearing on his or her fitness for military service and that homosexual conduct is not grounds for discharge.  

	c.  In light of this change, the applicant's DD Form 214 should be corrected to reflect item 25 as Army Regulation 635-200, paragraph 5-3; item 26 as JFF; item 27 as 1; and item 28 as Secretarial Authority.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 7 August 1996.  He was assigned for basic combat training (BCT) to the 46th Adjutant General BCT Battalion, Fort Knox, KY.

2.  His records contain a statement, dated 12 August 1996, written by Sergeant First Class MDM wherein he stated on 11 August 1996 that the applicant admitted to him and two other noncommissioned officers that he was a homosexual.  He told the applicant he would need to return in the morning and speak to the first sergeant or company commander.

3.  On 12 August 1996, he completed a DA Form 2823 (Sworn Statement) wherein he stated he was a homosexual and had engaged in a homosexual act prior to his enlistment in the RA.

4.  On 15 August 1996, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 paragraph 15-3b for homosexuality.  Specifically, the commander stated that he admitted he was a homosexual in a sworn statement.

5.  On 22 August 1996, he consulted with legal counsel and he acknowledged notification of the proposed discharge action.  He also acknowledged he was advised of the basis for the contemplated separation action, the possible effects of an entry-level separation, and of the procedures and rights available to him.  He declined to submit a statement in his own behalf.

6.  On 13 September 1996, his senior commander recommended approval of the discharge action.  

7.  On 23 September 1996, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 15-3b.  On 26 September 1996, he was discharged accordingly.  

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b by reason of homosexual admission with an uncharacterized character of service.  He completed 1 month and 20 days of creditable active service.

9.  His record is void of any record of adverse counseling or disciplinary actions.

10.  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 DADT or prior policies.

11.  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)) and the RE code to an immediately-eligible-to-reenter category.

12.  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

13.  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.  

14.  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.  The evidence of record confirms the applicant was discharged on 26 September 1996 under the provisions of Army Regulation 635-200, paragraph 15-3b after he admitted he was a homosexual.  

2.  His discharge for homosexual admission complied with the laws and regulations in effect at the time.  The separation authority, separation code, RE code, and narrative reason for separation listed on his DD Form 214 were appropriate and in accordance with the governing regulations then in effect.

3.  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 for homosexuality should now have their reason for discharge and characterizations of service changed.

4.  His record is void of any record of adverse counseling or disciplinary actions.

5.  In view of the foregoing, the applicant's record 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 him a new DD Form 214 to show he was discharged effective 26 September 1996 with an honorable characterization of service, under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1 and

	b.  Issuing him an Honorable Discharge Certificate, dated 26 September 1996.



      _________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)                                         AR20130011615





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ABCMR Record of Proceedings (cont)                                         AR20130011615



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