IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130017917 


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 his Reentry Eligibility (RE) code be changed 
to RE-1.

2.  He states due to the 2011 repeal of "Don't Ask, Don't Tell (DADT)," he would like his RE code changed to RE-1. 

3.  He provides no additional documents.  

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 12 April 2001 for a period of four years.  

3.  On 4 December 2003, the applicant submitted a statement to his company commander stating that he was homosexual and for his safety, requested to be discharged from the Army. 

4.  On 9 December 2003, the company commander submitted a Memorandum for Record, Subject:  Applicant's Statement on Sexual Orientation, wherein he indicated he learned of the applicant's sexual orientation after reading his statement, interviewing him, and conducting an inquiry regarding any threats made against him.  After his inquiry, the commander substantiated the applicant’s statement and initiated separation action against him.  

5.  On 18 December 2003, the applicant's command initiated separation proceedings against him under the provisions of Army Regulation 635-200 (Personnel Separations) due to homosexual admission.  

6.  After consulting with counsel, the applicant acknowledged the proposed separation action and waived his rights to counsel, consideration of his case by an administrative board, to appear before an administrative separation board, and to submit a statement in his own behalf.

7.  On 18 December 2003, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15 by reason of homosexual admission.    
	
8.  On 22 January 2004, the applicant was discharged under the provisions of Army Regulation 635-200 with a separation program designator (SPD) of "JRB," an Honorable Discharge Certificate, a character of service of honorable, and with an RE code of 4.  He completed 2 years, 9 months, and 11 days of total active service.  His service record does not indicate he received any disciplinary actions for misconduct during this period.   

9.  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 DADT or prior policies.

10.  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" (SPD Code JFF)
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category

11.  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

12.  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.

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 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 his discharge was commensurate with the reason for his discharge and his overall record of military service, in accordance with the governing regulations in effect at the time.

2.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reason for discharge and, when appropriate, characterizations of service changed.



3.  Therefore, the applicant's DD Form 214 should be amended to show his:

* narrative reason for discharge as "Secretarial Authority"
* SPD Code JFF
* RE code to an immediately-eligible-to-reenter category

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 issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service, by reason of Secretarial Authority (SPD JFF), with an RE code of 1, on 22 January 2004.  



      _____________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)                                         AR20130017917



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ABCMR Record of Proceedings (cont)                                         AR20130017917



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