IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130018021 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  He states:

   a.  Fort Hood personnel were on a witch hunt to get rid of as many undesirables as possible due to their sexual preference.  
   
   b.  now that "Don’t' Ask, Don't Tell" (DADT) policy “is in effect,” he feels that he should be given an honorable discharge and receive his retired pay from the Army, in which he served for 20 years and 6 days.

3.  He provides three discharge 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’s military records are not available to the Board.  This case is being considered using the documents provided by the applicant.  

3.  He enlisted in the Regular Army (RA) on 5 April 1971.  He was honorably released from active duty on 19 February 1973 and was transferred to the U.S. Army Reserve Control Group (Annual Training) on the following date.

4.  He enlisted in the RA on 15 January 1974 and was honorably discharged on 14 June 1977.  

5.  He enlisted in the RA again on 5 March 1979 and continued to serve on active duty through a series of reenlistments.  

6.  His discharge packet is not available for review.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 October 1992 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial with issuance of a general under honorable conditions discharge.  He completed 13 years, 7 months, and 10 days of active service during the period covered by the report and 6 years, 4 months, and 26 days prior active service.  

7.  His service record doesn't indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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 DADT or prior policies. 

10.  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 

11.  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 that same or prior periods.  Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant cites DADT, the available evidence does not show he was discharged under DADT or solely for homosexuality. 

2.  He contends he was discharged for the good of the service because Fort Hood personnel were on a witch hunt to get rid of as many undesirables as possible due to their sexual preference.  However, the evidence shows he voluntarily requested discharge for the good of the service in lieu of trial by 
court-martial.  His discharge packet is not available, so it cannot be determined what charges were preferred against him.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charges and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20130018021





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ABCMR Record of Proceedings (cont)                                         AR20130018021



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