IN THE CASE OF: 

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130014600 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

	a.  Under current law (repeal of the Don't Ask, Don't Tell (DADT) policy), his discharge would not have happened.

	b.  His average conduct and efficiency ratings/behavior and proficiency marks were good.  He received awards and decorations and letters of recommendation.

	c.  He was asked to leave military service for the good of the service due to his sexual orientation.  A person's sexual preference has no bearing/influence on whether he can be a productive member of the Armed Forces.  He faced sexual discrimination due to his sexual orientation.

	d.  The punishment he received was too severe compared to today's standards.  He served his country with pride and honor.

	e.  He was a good single parent who raised his son to be the man he is today, even though the Army did not give him any respect.  He instilled the values taught to him by the Army into his son.  His son is serving in the Army and he plans to retire from the Army like his grandfather did, as he had once hoped to do as well.

3.  The applicant provides:

* service personnel and medical records
* character reference letter
* DD Form 214 (Certificate of Release or Discharge 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 26 February 1986 for a period of 2 years.  He completed his training and was awarded military occupational specialty 76C (equipment records/parts specialist).

3.  A DA Form 2823 (Sworn Statement), dated 20 June 1987, executed by Private First Class (PFC) R____ states he invited the applicant and another Soldier to sleep overnight in his barracks room after a night of drinking in Germany.  After the lights went out he heard noises and he described what he perceived to be homosexual acts between the other two Soldiers.  He got up and turned the lights on.  He caught the two Soldiers committing a homosexual act and he called the charge of quarters.

4.  On 25 June 1987, charges were preferred against him for:

* committing indecent acts with a male PFC
* committing sodomy with the PFC

5.  On 30 June 1987, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

6.  On 7 July 1987, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 13 July 1987 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 1 year, 4 months, and 18 days of creditable active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  He provides a character reference letter from his employer who attests he was a good employee and father.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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.

11.  Under Secretary of Defense for 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 (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.

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 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.  Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant cites DADT, he was not discharged under DADT or solely for homosexuality.

2.  He contends he was asked to leave military service for the good of the service due to his sexual orientation.  However, the evidence shows he voluntarily requested discharge for the good of the service in lieu of trial by court-martial after charges were preferred against him for committing indecent acts and sodomy with a male Soldier.

3.  He contends the punishment he received was too severe compared to today's standards.  However, under current standards, committing indecent acts with another are still illegal and a Soldier discharged for the good of the service in lieu of trial by court-martial would normally receive a discharge under other than honorable conditions.  The applicant committed an indecent act in the presence of an unwilling participant (the other Soldier’s roommate). 

4.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.
5.  His record of service included serious offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

8.  In view of the foregoing, there is no basis for granting the applicant a general discharge.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that relief should be granted.  

2.  The applicant was charged with two offenses.  The charge of committing sodomy did not involve any aggravating factors and by itself would be eligible for an upgrade under today’s standards.

3.  The charge of committing indecent acts could apply to either homosexual or heterosexual acts.  However, the Board believed that had the offense been committed by a heterosexual couple then court-martial charges would not have been preferred and the punishment would have been more lenient.

4.  Therefore, the Board determined the evidence presented is 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), with an RE code of 1, on 13 July 1987; and

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 13 July 1987.



      ____________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)                                         AR20130014600



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ABCMR Record of Proceedings (cont)                                         AR20130014600



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