BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130013647 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states his request is based on the repeal of "Don’t Ask, Don't Tell" (DADT).  

3.  The applicant provides:

* multiple letters of recognition and appreciation
* multiple evaluation reports
* Radio Teletypewriter Operator Course Diploma
* Certificate of Achievement 

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.  On 30 August 1974, the applicant enlisted in the Regular Army.  On 29 July 1977 he reenlisted for 6 years.  He attained the rank of sergeant/E-5.

3.  On 12 September 1979, his commander notified him that he was recommending his discharge under the provisions of paragraph 13-4d of Army Regulation 635-200 (Personnel Separations), by reason of unsuitability.  He advised the applicant of his rights with regard to the proposed action.  The applicant acknowledged receipt of the notification.

4.  On 5 October 1979, the applicant's commander recommended the applicant's discharge under the provisions of paragraph 13-4d of Army Regulation 635-200 (Personnel Separations) for unsuitability due to homosexuality.  His chain of command recommended approval of this action.

5.  The separation authority approved the applicant’s separation under the provisions of paragraph 13-4d, Army Regulation 635-200, by reason of unsuitability and directed the applicant receive a general discharge.

6.  On 25 October 1979, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him in connection with his separation shows he completed a total of 5 years, 1 month, and 26 days of creditable active military service.

7.  His DD Form 214 for this period further shows:

* character of service of under honorable conditions
* authority for separation as Army Regulation 635-200, paragraph 13-4d
* separation program designator (SPD) code of JML
* RE code of 3
* narrative reason for separation of unsuitability - homosexuality

8.  His service record does not indicate he received any disciplinary actions for misconduct.

9.  He provides multiple letters of recognition and appreciation.  The diploma he provides shows he was an honor graduate of the Radio Teletypewriter Operator Course.

10.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, personality disorder, apathy, or homosexual tendencies.  It stated it was Headquarters, Department of the Army policy that homosexuality was incompatible with military service.  Accordingly, when conditions existed which would support action under paragraph 13-4d the member would be processed for discharge.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

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, 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.

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

* character of service to honorable
* narrative reason for discharge (the change should be to "Secretarial Authority")
* SPD code to JFF
* RE code to an immediately-eligible-to-reenter category

15.  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
* there were no aggravating factors in the record, such as misconduct

16.  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, 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 24 (Character of Service) - Honorable
* 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 24 – Honorable
* 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)                                         AR20130013647



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ABCMR Record of Proceedings (cont)                                         AR20130013647



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