IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130017684 


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 the narrative reason for his separation.

2.  The applicant states that with the repeal of the "Don't Ask, Don't Tell (DADT) policy, the narrative reason for his discharge should be changed because he served honorably and without incident.

3.  The applicant provides no documentary evidence in support of his application.

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 3 January 1977 for a period of 
3 years.  He was awarded military occupational specialty 95B (Military Police). 
3.  On 18 October 1978, a Special Agent of the U.S. Army Criminal Investigation Command reported that the applicant admitted to being homosexual.

4.  On 31 October 1978, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Separation for Unfitness or Unsuitability) because of homosexuality.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the procedures and rights that were available to him, and the type of discharge he could receive.  He:

* waived consideration of his case by an administrative separation board
* elected not to submit statements in his own behalf
* acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him

6.  On 3 November 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, with the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 13 November 1978.

7.  The applicant submitted a request to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 30 December 1980, the ADRB determined the applicant's discharge was proper, but not equitable and upgraded the character of his service to fully honorable.  Accordingly, his  DD Form 214 (Report of Separation from Active Duty) was voided and he was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty).

8.  The DD Form 214 he was issued shows he entered active duty on 3 January 1977 and he was honorably discharged on 13 November 1978.  He completed 
1 year, 10 months, and 11 days of total active service.  It also shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, based on unsuitability: homosexuality.  He was assigned a separation code of "JML" and a reenlistment (RE) code of "4."

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 prescribes the procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual separated because of unsuitability will be furnished an honorable or general discharge certificate, as warranted by their military record.
10.  The DADT 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.

11.  Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., Army Regulation 635-200, paragraph 5-3) and the Separation Program Designator (SPD) code to "JFF" (Secretarial Authority).  It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 3 January 1977 to 13 November 1978.  During his military service the applicant admitted to being homosexual. Accordingly, his chain of command initiated separation action against him and he was issued a general, under honorable conditions discharge.

2.  The applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error.

3.  The ADRB upgraded the applicant's character of service to fully honorable.

4.  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/bisexuality should now have the authority and reason for discharge changed, along with the SPD code, and the RE code should normally be changed to an immediately-eligible-to-reenter category.

5.  The evidence of record shows the applicant's discharge was based on his admission that he was homosexual.  There is no evidence of aggravating factors in the record, such as misconduct.

6.  Therefore, in view of the foregoing, the applicant's DD Form 214 should be corrected to show he was honorably discharged with "Secretarial Authority" as the narrative reason for separation with an SPD code of "JFF" (Secretarial Authority) and an RE code of "1" (Eligible for Enlistment/Reenlistment). 

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 voiding his 13 November 1978 DD Form 214 and issuing a new DD Form 214 to show he was honorably discharged by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1." 



      _______ _   __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)                                         AR20130017684



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ABCMR Record of Proceedings (cont)                                         AR20130017684



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