BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130018301 


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 that his separation program number (SPN) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be removed. 

2.  The applicant states he is not a homosexual and never has been.  His sergeant (SGT) told him if he said he was a homosexual that he would be able to go home on leave and address some family matters.  The SGT said that since he was not married, stating he was a homosexual would be the only way he could get leave.  Instead, he was discharged.  He will live with the general discharge, but the SPN is not true.  He is married with three children and several grandchildren.  He should not have listened to the SGT and he regrets the decision every day of his life.

3.  The applicant provides no additional documentation in support of his request.

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 29 March 1966.  He did not complete basic training.

3.  On 28 April 1966, he underwent a psychiatric evaluation that determined he was mentally responsible and able to distinguish right from wrong and adhere to the right.  The psychiatric report states:

	a.  The applicant was first seen at the medical clinic because of feelings of dizziness but soon admitted to doctors and his company that he was a homosexual.  He had an extremely negative attitude toward the service and wanted to get out.

	b.  He stated that he first started his homosexual activities at the age of fourteen, and stated that he has had homosexual partners since then.  He further stated that he felt comfortable with his homosexual acts and wanted to get out of the Army so he could go back to that type of behavior.

	c.  His diagnosis was that of sexual deviate, homosexual type, chronic, severe; manifested by a long history of homosexual activity.  He was recommended for separation.

4.  On 9 May 1966, the applicant acknowledged notification of his commander's recommendation to discharge him under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).  He was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  He waived consideration of his case by a board of officers, military counsel, and elected not to submit a statement in his own behalf.

5.  On 9 May 1966, his commander recommended his discharge for unsuitability (homosexuality) under the provisions of Army Regulation 635-89.  His commander cited the specific reason for discharge as the applicant being a self-confessed homosexual.  He recommended the applicant be discharged as soon as possible. 

6.  On 23 May 1966, the separation authority approved his discharge for unsuitability (homosexual) under the provisions of Army Regulation 
635-89 and directed the issuance of a General Discharge Certificate.  On 
31 May 1966, the applicant was discharged accordingly.
7.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation “635-209” with a general under honorable conditions characterization of service.  He completed 2 months and 2 days of creditable active service.  This form also shows he was assigned SPN 256 (Homosexual, acceptance of discharge in lieu of board action). 

8.  There is no indication he applied to the Army Discharge Review Board for a change in the reason and authority for his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation states, in pertinent part, that Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively. 

10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted Soldiers.  Paragraph 3-7a states 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.

11.  Army Regulation 635-200, paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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

13.  The memorandum above 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 service to honorable
* the reentry eligibility (RE) code to an immediately-eligible-to-reenter category

14.  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

15.  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.

16.  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 that same or prior period.  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 request that his SPN be changed was carefully considered and it was determined there is sufficient evidence to support his request. 

2.  The evidence of record shows the applicant was discharged on 31 May 
1966 under the provisions of Army Regulation 635-89 by reason of homosexuality with a general under honorable conditions discharge after an examination determined he had homosexual tendencies.

3.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.

4.  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 due to homosexuality should now have their reason for discharge and characterizations of service changed.

5.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 effective
31 May 1966 with an honorable characterization of service, by reason of Secretarial Authority with an SPD of JFF, and an RE code of 1






* Issuing him an Honorable Discharge Certificate, dated 31 May 1966, in lieu of the General Discharge Certificate he now holds



      __________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)                                         AR20130018301





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ABCMR Record of Proceedings (cont)                                         AR20130018301



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