IN THE CASE OF: 

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016716 


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 undesirable discharge to an honorable or general discharge.

2.  The applicant states he was administratively discharged when he reported himself as being bisexual.  At the time he felt that something was wrong with him and reporting himself was appropriate.  He states he was abused during childhood and raised without a father who was in prison.  He had great hope that he would overcome his past when he joined the military.  He was victimized again while on leave after basic training and he lived in constant fear and shame.  He reported himself to his company commander because of feeling guilty and believing he had acted shamefully.  In retrospect, he can see that it wasn't the intelligent thing to do, but he lived in fear of being discovered.  When he reported himself, he thought he was doing the right thing because he thought he could be helped.  Recent changes in military regulations that permit bisexual Soldiers to serve openly is evidence of his eligibility for an upgrade of his discharge.

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 15 July 1966 for a period of 3 years.  He completed basic training at Fort Bragg, North Carolina, and was transferred to Fort Jackson, South Carolina, to undergo advanced individual training as a personnel specialist.

3.  On 16 November 1966, the applicant authored a statement in which he admitted he had homosexual relations with at least two males just prior to entering the Army.

4.  On the same day his commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuals) for unsuitability due to homosexuality.

5.  On 25 October 1966, the applicant underwent a neuropsychiatric evaluation and was diagnosed as having sexual deviation, homosexuality, chronic severe, characterized by repeated homosexual activities and a present desire to continue.  The examining psychiatrist opined that the applicant's condition represented a long-standing refractory personality disorder and recommended his administrative discharge.

6.  After consulting with counsel, the applicant waived his rights and declined to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

8.  Accordingly, he was discharged under other than honorable conditions on 12 December 1966 under the provisions of Army Regulation 635-89 for unsuitability due to homosexuality.  He completed 4 months and 28 days of active service.

9.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There are no instances of nonjudicial punishment or courts-martial in his records.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 30 August 1972 contending that he had adjusted to a normal heterosexual life and had gotten married in 1971.  The ADRB reviewed his case and determined that his discharge was both proper and equitable and voted to deny his request on 11 July 1973.

11.  Army Regulation 635-89, in effect at the time, set forth the basis authority for the separation of homosexuals.  It stated that personnel would be discharged under other than honorable conditions if the case falls within Class II.  Class II consisted of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

12.  Army Regulation 635-200, paragraph 5-3, establishes policy and prescribes procedures for separating members under Secretarial Authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.

13.  The 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 Don't Ask – Don't Tell (DADT) or prior policies.

14.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* narrative reason for discharge to "SECRETARIAL AUTHORITY"
* separation code to "JFF"
* character of service to "HONORABLE"

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 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/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 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.  Army regulations in effect at the time of his discharge required separation of a member who stated he or she was homosexual or bisexual unless it was later found the statements were not true.  The applicant was processed for discharge based on his own statement that he was homosexual and had engaged in homosexual acts.  There is no evidence of a further finding that he was not homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  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 may now have their reason for discharge amended.

4.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in his records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue him a new DD Form 214 showing his character of service as honorable, a separation authority of Army Regulation 635-200, paragraph 5-3, a separation code of JFF, and a narrative reason for separation as 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 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 issuing the applicant a new DD Form 214 showing the following entries in the items indicated:

* item 24 (Character of Service) – Honorable
* item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-3
* item 26 (Separation Code) – JFF
* item 27 (Reentry Code) – 1
* item 28 (Narrative Reason for Separation) – 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)                                         AR20130016716



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ABCMR Record of Proceedings (cont)                                         AR20130016716



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