IN THE CASE OF:	  

		BOARD DATE:	    26 March 2014

		DOCKET NUMBER:  AR20130012679 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show a reentry (RE) code of "1." 

2.  The applicant states Don't Ask, Don't Tell (DADT) is no longer in force and he wants this correction so he may reenter military service.

3.  The applicant provides his DD Form 214.

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 26 February 2008.  He did not complete initial entry training.
3.  On 30 July 2008, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15 for homosexual conduct.

4.  On 30 July 2008, the applicant acknowledged notification of the proposed discharge action.

5.  His command initiated separation proceedings against him under the provisions of Army Regulation 635-200 (Personnel Separations) due to homosexuality admission. 

6.  On 31 July 2008, he was advised by consulting counsel of the basis for the contemplated separation action, the possible effects of such a discharge, and the rights available to him.  He waived his right to consideration of his case by a board of officers and personal appearance before a board of officers only if his service was characterized no less favorably than honorable.  He elected not to submit a statement on his own behalf.  

7.  The separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15 by reason of homosexual conduct with his service characterized as honorable.    

8.  On 8 August 2008, the applicant was discharged accordingly.  He completed 5 months and 13 days of active service.  His DD Form 214 shows a character of service of honorable; the authority for separation as Army Regulation 635-200, paragraph 15-3c; his separation program designator (SPD) code as "JRC"; and an RE code of "4."  His service record does not indicate he received any disciplinary actions for misconduct during this period. 

9.  Army Regulation 635-200, chapter 15, then in effect, provided general policies concerning homosexual conduct.  Paragraph 15-3c stated that a Soldier would be discharged if the Soldier had married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).

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, U.S. 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" (SPD code JFF))
* RE code to an immediately-eligible-to-reenter category

12.  For the above changes to be warranted there must have been no aggravating factors in the record, such as misconduct.

13.  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 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.

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.  The law has since been changed.  When appropriate Soldiers separated solely for homosexuality should now have the reason for discharge, separation code, RE code and, when appropriate, characterization of service changed.  The evidence of record shows his record is void of any adverse disciplinary actions.

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

* item 25 (Separation Authority) AR 635-200, Para 5-3
* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority


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 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 issuing him a new DD Form 214 to show:

* item 25 – AR 635-200, Para 5-3
* item 26 - JFF
* item 27 - 1
* item 28 - Secretarial Authority




      _______ _   _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)                                         AR20130012679



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ABCMR Record of Proceedings (cont)                                         AR20130012679



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