IN THE CASE OF:	 

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015461 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 26 (Separation Code) from "JRB" to "JDJ" and to state the entry "Early Release - In the National Interests." 

2.  The applicant states at the time of her admission, she was not living a homosexual or bisexual lifestyle.  However, she was confronted with rampant sexual harassment and she used the admission to dissuade unwelcome advances of a sexual nature. 

3.  The applicant provides her 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 U.S. Army Reserve on 12 March 1985.  She entered active duty for training (ADT) on 21 May 1985 and completed training for military occupational specialty 81B (Technical Drafting Specialist).  She was honorably released from ADT on 1 November 1985. 

3.  She enlisted in the Regular Army on 9 November 1988.  She completed training for military occupational specialty 91A (Medical Specialist) and she served in Germany from 21 May 1989 to 14 November 1989. 

4.  On 24 September 1989, her immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph 15-3 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for homosexuality.  The specific reasons for the discharge were that the applicant admitted to being homosexual. 

5.  On 24 September 1989, the applicant acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel.  She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by a board of officers and waived personal appearance before a board of officers.  She further elected not to submit a statement on her own behalf.  She also acknowledged she understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and she also understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both State and Federal law.

6.  Subsequent to this acknowledgement, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of homosexuality.  Her intermediate commander recommended approval of the discharge action with the issuance of an honorable discharge. 

7.  On 12 October 1989, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with an honorable characterization of service.  Accordingly, she was discharged on 15 November 1989.  

8.  The DD Form 214 she was issued shows she was discharged under the provisions of chapter 15 of Army Regulation 635-200 and her service was characterized as "Honorable."  Her DD Form 214 shows in:
* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph    15-3b
* Item 26 - JRB
* Item 27 (Reentry (RE) Code) - RE-4
* Item 28 (Narrative Reason for Separation) - Admission of Homosexuality/Bisexuality

9.  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.  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JRB" was the correct code for Soldiers separating under paragraph 15-3 for homosexuality. The SPD code of "JDJ" does not exist in Army Regulation 635-5-1 and the SPD code of "JJD" is the appropriate code for a court-martial. 

11.  The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

12.  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.  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))
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

13.  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 and there were no aggravating factors in the record, such as misconduct.

14.  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.

15.  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 those 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 served in the Regular Army from 9 November 1988 through 15 November 1989.  During her military service, she admitted to being a homosexual.  Her chain of command initiated separation action against her.  Her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The honorable characterization of service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.  She was appropriately assigned SPD JRB. 

2.  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.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, her overall record of service merits a characterization of service upgrade to fully honorable by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding her DD Form 214 for the period ending 15 November 1989 and issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to assigning her SPD JDJ or the wording Early Release - In the National Interests. 



      _______ _   _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)                                         AR20130015461





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ABCMR Record of Proceedings (cont)                                         AR20130015461



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