BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130017438 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Achievement Medal and all awards he is entitled to
* item 27 (Reentry (RE) Code) something other than 4
* item 28 (Narrative Reason for Separation) something other than homosexual act  

2.  The applicant states:

	a.  He is requesting his RE code be changed and the reason for his discharge either reworded or a less embarrassing phrase used.  He was never given a chance to defend himself against the allegations that were brought against him.  He was told by his legal counsel to just accept the honorable discharge and to leave with his dignity.  However, with the way his DD Form 214 is worded there was not much to leave with.

	b.  He is applying for employment with the U.S. Border Patrol and other Federal agencies that all want to see his DD Form 214.  It is embarrassing to hand it over to people and wonder what they think of him.  He has even tried to reenlist in the military but has not been able to do so with his RE code.

	c.  He received the Army Achievement Medal for going above and beyond the call of duty in a training exercise when two or three Soldiers in his squad were wounded, to include himself.

3.  The applicant provides his 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 Regular Army on 17 June 1998.  On 26 January 1999, he was assigned to the 2nd Battalion, 63rd Armor Regiment, Germany, on an accompanied tour with his spouse.

3.  On 16 October 2001, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation (AR) 635-200, chapter 15 for homosexuality.  Specifically, the commander stated that other unit members stated he told them he had previously engaged in oral sex with other male friends.  The commander stated he was recommending he receive an honorable discharge.

4.  On 18 October 2001, he consulted with legal counsel and he acknowledged notification of the proposed discharge action.  He also acknowledged he was advised of the basis for the contemplated separation action, the possible effects of an entry-level separation, and of the procedures and rights available to him.  He elected not to submit a statement in his own behalf.

5.  On 18 October 2001, his senior commander recommended approval of the discharge action with his service characterized as honorable.  

6.  On 1 November 2001, the separation authority approved his discharge under the provisions of AR 635-200, chapter 15.  On 14 December 2001, he was discharged accordingly.  
7.  The DD Form 214 he was issued confirms he was honorably discharged under the provisions of AR 635-200, paragraph 15-3a by reason of homosexual acts.  

8.  His DD Form 214 also shows the following entries in:

* item 13 - Army Service Ribbon
* item 25 (Separation Authority) - AR 635-200, paragraph 15-3a
* item 26 (Separation Code) - JRA
* item 27 - 4
* item 28 - Homosexual Acts

9.  His record is void of orders awarding him the Army Achievement Medal.  

10.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he qualified as sharpshooter with the pistol.  It does not show the Army Achievement Medal or any other awards.

11.  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 Don't Ask Don't Tell (DADT) or prior policies.

12.  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.

13.  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.
14.  AR 600-8-22 (Military Awards) states the:

	a.  Army Achievement Medal is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 
14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. 

	c.  Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility (AOE) designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was honorably discharged on 14 December 2001 under the provisions of AR 635-200, paragraph 15-3a by reason of homosexual acts.  

2.  His discharge for homosexual acts complied with the laws and regulations in effect at the time.  The separation authority, separation code, RE code, and narrative reason for separation listed on his DD Form 214 were appropriate and in accordance with the governing regulations then in effect.

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 should now have their reason for discharge changed.  Therefore, he should be issued a new DD Form 214 to show he was honorably discharged under the provisions of AR 635-200, paragraph 5-3 by reason of Secretarial Authority, with an SPD code of JFF, and an RE code of 1.

4.  His record confirms he qualified as Sharpshooter with the pistol.  Therefore, he is entitled to correction of his new DD Form 214 to show the Sharpshooter Marksmanship Qualification Badge with Pistol Bar.

5.  He served during a qualifying period for award of the National Defense Service Medal and the GWOTSM.  Therefore, his new DD Form 214 should show these medals.

6.  With respect to the Army Achievement Medal, his record is void of orders showing he was awarded the Army Achievement Medal.  The governing Army regulation states that formal recommendations, approval through the chain of command, and announcement in orders are required for personal decorations, which include the Army Achievement Medal.  Regrettably, in the absence of orders, there is insufficient evidence to correct his DD Form 214 to show the Army Achievement Medal.

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:

* issuing him a new DD Form 214 to show he was honorably discharged effective 14 December 2001 under the provisions of Army Regulation 
635-200, paragraph 5-3, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1 
* adding to item 13 of his new DD Form 214 the National Defense Service Medal, Global War on Terrorism Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar

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 the Army Achievement Medal.



      _______ _   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)                                         AR20130017438





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ABCMR Record of Proceedings (cont)                                         AR20130017438



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