BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019027 


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 discharge to honorable.

2.  She states "Don't Ask, Don't Tell (DADT)" law was repealed.  A statement about a Soldier's sexual orientation is no longer grounds for discharge.

3.  The applicant provides 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.  On 13 June 1984, the applicant enlisted in the Regular Army for a period of 
3 years.
3.  On 27 August 1985, she submitted a statement in which she admitted to engaging in homosexual relations and said she would continue to engage in these activities.  She added she was convinced that it would be in the best interest of the Army and herself if she was discharged from active duty at the earliest possible date.

4.  On 28 August 1985, the commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15.  He stated the specific reason for his recommendation was the applicant submitted an oral and written statement attesting to her homosexuality and acknowledging that she would continue to engage in sexual relations with members of her own gender.  He acknowledged that the applicant had no previous record of trial by court-martial or any other disciplinary action.

5.  On 29 August 1985, the commander notified her that he was recommending her discharge under the provisions of Army Regulation 635-200, chapter 15, homosexuality.  The commander advised her that the least favorable characterization of service that she could receive was a general discharge.  He also advised her of her right to:

* have her case considered by a board of officers
* appear in person before a board of officers
* submit statements in her 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 her discharge and request her case be presented before a board of officers

6.  On 5 September 1985, the applicant submitted a statement acknowledging that she had been advised by counsel of the basis for the contemplated action against her under the provisions of chapter 15 of Army Regulation 635-200 for homosexuality.  She waived consideration by a board of officers and waived a personal appearance.  She stated that she was not submitting a statement in her own behalf and she waived counsel.  

7.  The applicant also acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

8.  On 25 October 1985, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.
9.  On 12 November 1985, she was discharged accordingly.  Her DD Form 214 shows in:

* Item 24 (Character of Service) - Under Honorable Conditions (General)
* Item 25 (Separation Authority) - Army Regulation 635-200, Paragraph 
15-3b
* Item 26 (Separation Code) - JRB
* Item 27 (Reenlistment Code) - RE (reentry eligibility) "4"
* Item 28 (Narrative Reason for Separation) - Admission of homosexuality/bisexuality

10.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There are no instances of nonjudicial punishment or courts-martial in her records.  

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

13.  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 above regulation showed that the SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Homosexual admission."  

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

14.  Additionally, the SPD/RE Code Cross Reference Table establishes an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for this reason.


15.  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.

16.  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

17.  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

18.  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.

19.  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 her 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 her own statement that she was a homosexual and would continue in homosexual acts.  There is no evidence of a further finding that she 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 records contain no indication of procedural or other errors that would have jeopardized her 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 the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in her records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue her 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 changing the following items in:

* Item 24 enter "Honorable"
* Item 25 enter "Regulation 635-200, Paragraph 5-3"
* Item 26 enter the SPD code of "JFF"
* Item 27 enter an RE code of "1"
* Item 28 enter "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)                                         AR20130019027





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ABCMR Record of Proceedings (cont)                                         AR20130019027



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