IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017854 


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 her general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states she is asking for this upgrade of her discharge based on the repeal of the "Don't Ask Don't Tell" (DADT) law and the invalidation of the Defense of Marriage Act.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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's record shows she enlisted in the Regular Army on 3 July 1984.  She was assigned for duty in the Federal Republic of Germany on 
4 February 1986.

3.  On 18 September 1986, the applicant was promoted to the rank/grade of sergeant SGT/E-5.

4.  On 7 March 1987, the applicant accepted nonjudicial punishment (NJP) for operating a vehicle while drunk.  Her punishment included a reduction in rank to specialist SPC/E-4.

5.  On 18 March 1987, a mental status evaluation showed the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  She was capable of participating in the separation processing.

6.  On 26 March 1987, the applicant, in a letter addressed to the Commander, U.S. Army Medical Center, Europe, admitted to being homosexual.  She further admitted to being a person who engages in, desires to engage in, or intends to engage in homosexual acts.  She requested that she receive an honorable characterization of service should she be discharged from the military service.

7.  On 7 May 1987, the applicant was notified by her immediate commander that discharge action was being initiated against her under the provisions of chapter 15, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for homosexuality.  The commander informed the applicant that the least favorable characterization of service she could receive was general, under honorable conditions.  Specifically, the commander cited the following reasons as the basis for his action:

   a. The applicant admitted to being homosexual.
   
   b.  The applicant's continued presence in the Army was not consistent with the interest of the Army in proper discipline, good order and morale.

8.  On 7 May 1987, she acknowledged notification of the proposed discharge action and she was advised by consulting counsel of the basis for the contemplated separation action, the possible effects of an under honorable conditions discharge and a discharge under other than honorable conditions, and of the procedures and rights available to her.


9.  On 8 May 1987, the applicant's commander recommended her separation from military service based on her admission of being homosexual.  He recommended that she receive a general, under honorable conditions characterization of service.

10.  On 20 May 1987, the recommendation was reviewed by the legal services center and found to be legally sufficient.

11.  On 23 June 1987, the separation authority approved her discharge for homosexuality and directed the issuance of a DD Form 257A (General Discharge Certificate).  On 7July 1987, she was discharged accordingly.

12.  The applicant's DD Form 214 shows she was discharged under the provisions paragraph 15-3b, Army Regulation 635-200, with an under honorable conditions characterization of service.  She also was given a separation code of JRB and a reentry eligibility code of RE-4.  The narrative reason for separation was stated as Admission of Homosexuality/Bisexuality.  She completed 3 years and 5 days of creditable active service.

13.  Army Regulation 635-200, chapter 15, as then in effect, provided general policies concerning homosexual conduct.  Paragraph 15-3b stated that a Soldier would be discharged if he or she made a statement saying they were homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier had demonstrated that he or she was not a person who engaged in, attempted to engage in, had a propensity to engage in, or intended to engage in homosexual acts.

	a.  Paragraph 3-7a(1) stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b. Paragraph 3-7b(1) stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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.

15.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) Code of JFF
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category of RE-1

16.  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

17.  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 be normally considered as an indication of no aggravating factors.

18.  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 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.  The applicant's discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The characterization of her discharge was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

2.  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.

3.  The evidence of record shows the applicant accepted one NJP prior to her admission to being homosexual.  This NJP was not a factor in her subsequent discharge.  Furthermore, based on her overall quality of service as evidenced by her attaining the rank of sergeant about 2 years after her enlistment, it is very probable that had she remained on active duty until the expiration of her term of service she would have received an honorable characterization of service.  In view of the foregoing, her overall record of service and the change in the governing law, she merits an upgrade of her characterization of service to fully honorable.

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:

	a.  issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), with an RE code of 1, on 7 July 1987, and



	b.  issuing her an Honorable Discharge Certificate, dated 7 July 1987.




      ____________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)                                         AR20130017854



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ABCMR Record of Proceedings (cont)                                         AR20130017854



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