IN THE CASE OF:	  

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130018885 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was discharged from the military for admitting to homosexuality which is now legal.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 September 1985
* DD Form 215 (Correction to DD Form 214), dated 13 June 1986
* 13 pages from his service medical records

CONSIDERATION OF EVIDENCE:

1.  On 29 January 1985, he enlisted in the Regular Army for 3 years.  

2.  On 6 June 1985, he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 41st Infantry, 2nd Armored Division (Forward) in Germany.

3.  In a sworn statement, dated 10 July 1985, the applicant stated his sexual preference, which was labeled as a gay/bisexual relationship, had caused him problems.  He had come to the conclusion he had not been able to adapt to military life and never would, due to the fact that his sexual preference would not change.

4.  On 18 July 1985, the applicant's commander notified him that he was recommending him for discharge under the provisions of chapter 15 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel) due to homosexuality.  He stated:

* the specific basis for his recommendation was his admitted homosexuality
* the least favorable characterization of service he could receive was under other than honorable conditions

5.  The commander advised the applicant of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers

6.  On 20 July 1985, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 15 of Army Regulation 635-200 for homosexuality.  He waived consideration by a board of officers and waived a personal appearance.  He stated that he was submitting a statement in his own behalf and he waived counsel.  His statement was not available for review.

7.  The applicant also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him.

8.  On 22 July 1985, the applicant's commander recommended the applicant be eliminated from the service before the expiration of his term of service under the provisions of chapter 15 of Army Regulation 635-200 for homosexuality.

9.  On 27 August 1985, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

10.  On 3 September 1985, he was discharged.  His DD Form 214 shows in:

* Item 24 (Character of Service) - Under Honorable Conditions 
* Item 25 (Separation Authority) - Army Regulation 635-200, 
Paragraph 15-3b
* Item 26 (Separation Code) - JRB
* Item 27 (Reenlistment Code) - RE (Reentry Eligibility) - RE 3, 3C
* Item 28 (Narrative Reason for Separation) - Admission of Homosexuality/Bisexuality

11.  A DD Form 215, dated 13 June 1986, changed the entry in item 27 to RE-4 instead of RE 3, 3C.

12.  His record shows no evidence of misconduct that warranted disciplinary action. 

13.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Paragraph 15-3b of Army Regulation 635-200, in effect at the time, stated a Soldier would be separated if the Soldier had stated that he or she was a homosexual or bi-sexual, unless there was a further finding that the Soldier was not a homosexual or bisexual.

15.  Table 2-2 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Personnel Separations, Separation Documents), in effect at the time, established an RE code of "4" as the proper RE code to assign Soldiers who were separated with a separation code of "JRB."

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  

	a.  The SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Admission of homosexuality/bisexuality."

	b.  The authority for this SPD code was Army Regulation 635-200, paragraph 15-3b.

17.  The 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.

18.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* narrative reason for discharge to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

19.  For the above corrections/amendments 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

20.  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.

21.  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 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.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own sworn statement that he was a homosexual.  There is no evidence of a further finding that he was not a homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.

3.  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 RE code changed.

4.  There is no evidence of misconduct that warranted disciplinary action.  

5.  In view of the above, it would be appropriate to issue him a new DD Form 214 with the characterization as honorable, an SPD code of "JFF," an RE code of "1," and a narrative reason for separation as Secretarial Authority.

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 the individual a new DD Form 214 showing in:

* Item 24 - "Honorable"
* Item 25 - "Regulation 635-200, Paragraph 5-3 of Army"
* Item 26 - "JFF"
* 
Item 27 - "1"
* Item 28 - "Secretarial Authority"




      _______ _   __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)                                         AR20130018885



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ABCMR Record of Proceedings (cont)                                         AR20130018885



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