IN THE CASE OF:	  

		BOARD DATE:	  :29 April 2014

		DOCKET NUMBER:  AR20130015106 


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 her discharge be upgraded to honorable.

2.  The applicant states she does not want item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the entry "Admission of Homosexuality."  She never admitted to being a homosexual but she didn't have the $200 needed to hire a civilian attorney so she couldn't fight the charge.  She was unjustly discharged.

3.  The applicant provides no additional evidence.

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 1 May 1984.  She was assigned to the 73rd Maintenance Company, Fort Carson, CO, on 5 October 1984.  She was promoted to the rank/grade of private first class (PFC)/E-3 on 1 May 1985.  

3.  On 29 May 1986, she was counseled for writing a check in the amount of $20 with insufficient funds in her account to cover the check.

4.  In May 1986, the U.S. Army Criminal Investigation Command, hereafter referred to as CID, conducted an investigation into allegations that several Soldiers at Fort Carson had entered into contract marriages. 

5.  The final CID Report of Investigation, dated 21 July 1986, shows CID determined those allegations were false but in the course of the investigation it was revealed the applicant had committed the offense of solicitation to commit sodomy [with another female Soldier] and committing indecent acts with that consenting female Soldier.  She was titled for solicitation to commit sodomy and committing indecent acts.

6.  On 19 September 1986, she was notified by her immediate commander that discharge action was being initiated against her under the provisions of Army Regulation 635-200 paragraph 15-3 for homosexuality.  Specifically, the commander stated that she had engaged in a homosexual act.

7.  On 19 September 1986, she consulted with legal counsel and acknowledged notification of the proposed discharge action.  She also acknowledged she was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to her.  She declined to submit a statement in her own behalf.

8.  On 23 September 1986, the separation authority approved her discharge under the provisions of Army Regulation 635-200, chapter 15 and directed issuance of a General Discharge Certificate.  On 9 October 1986, she was discharged accordingly.  

9.  The DD Form 214 she was issued confirms she was discharged in the rank of PFC under the provisions of Army Regulation 635-200, paragraph 15-3b by reason of homosexual admission with an under honorable conditions (general) characterization of service.  She completed 2 years, 5 months, and 9 days of creditable active service.  

10.  Her DD Form 214 also shows in:
* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph
15-3b
* Item 26 (Separation Code) - JRB
* Item 27 (Reenlistment (RE) Code) - RE-4
* Item 28 - Admission of Homosexuality

11.  Except for counseling she received on one occasion for writing a bad check, her record is void of any other of adverse counseling or disciplinary actions.

12.  Army Regulation 635-200, chapter 15 at the time, prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces (emphasis added).  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

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, 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.

14.  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.

15.  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

16.  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.  

17.  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 9 October 1986 under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of admission of homosexuality with an under honorable conditions characterization of service.   

2.  Although the applicant was found to have solicited another female Soldier to commit sodomy and she was initially recommended for discharge due to engaging in [consensual] homosexual acts, it appears this did not meet the criteria outlined in Army Regulation 635-200, chapter 15 for an under other than honorable conditions discharge, and she was subsequently discharged for admission of homosexuality with a general discharge.

3.  Notwithstanding her contention that she never admitted to being a homosexual, in the absence of evidence to the contrary, it is presumed what the Army did in her case was proper and her discharge for homosexual admission complied with the laws and regulations in effect at the time.  The characterization of her service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

4.  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.

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:

* issuing her a new DD Form 214 to show she was discharged effective 9 October 1986 with an honorable characterization of service, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1
* issuing her an Honorable Discharge Certificate, dated 9 October 1986, in lieu of the General Discharge Certificate she now holds



      _______ _   __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)                                         AR20130015106





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ABCMR Record of Proceedings (cont)                                         AR20130015106



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