IN THE CASE OF:	  

		BOARD DATE:	 10 July 2014 

		DOCKET NUMBER:  AR20130019796 


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 reentry code (RE) code from RE-4 to a more favorable code so she may reenter military service.

2.  The applicant states

	a.  She enlisted in the Regular Army as a 25B (Information Systems Operator), for 6 years, but she was only able to complete a little more than 2 years due to being discharged on Don't Ask, Don't Tell.  She joined the Army at the age of 20 and it has always been her dream to serve her country in the military.  During her time in the military, she never got into trouble and she was an excellent Soldier.  She was on track to become an E-5 and had a bright career but all that was caught short when she was discharged due to Don't Ask, Don't Tell.  The way that she was discharged was that she talked to the unit Chaplain about a relationship she was in with a woman when she was stationed in Korea and the Chaplain told her first sergeant and commander that she was a lesbian. 

	b.  Her first sergeant and commander called her into their office and asked her if it was true that she was gay.  She told them "Yes."  Even though the "Don't Ask, Don't Tell" rule was around in 2005, they asked her about her sexual orientation and thinking about her Army values and, being honest, she told the truth.  She thought the conversation she had with the Chaplain was confidential, but she found out that he didn't keep their conversation confidential and told her command about her sexual orientation.  After that she was discharged due to Homosexual Admission.  It was an Honorable Discharge, but it gave her an RE-4 on her DD Form 214 (Certificate of Release or Discharge from Active Duty) which basically barred her from serving in the Regular Army, Army National Guard, or U.S. Army Reserve. 

	c.  This has continuously been a burden in her life because she always dreamed about one day serving her country again but the law never changed. Now with the Don't Ask, Don't Tell change in the law, she would like to have her DD Form 214 corrected and be able to go back into the Army. 

3.  The applicant provides her DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 November 2002 and she held military occupational specialty 25B.  She was assigned to the 304th Signal Battalion in Korea. 

2.  On 30 March 2005, her immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph 15-3 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for homosexuality.  The specific reasons for the discharge were that the applicant admitted to being homosexual and created a presumption that she had a propensity to engage or intend to engage in homosexual or bisexual acts. 

3.  On 1 April 2005, the applicant acknowledged receipt of the commander's notification.  She indicated she had been afforded the opportunity to consult with counsel but declined that opportunity.  She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by an administrative separation board and waived personal appearance before such board.  She further elected not to submit a statement on her own behalf.  She also acknowledged:

* she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her
* she also understood as a result of the issuance of an under other than honorable conditions discharge, she could be ineligible for many or all benefits as a veteran under both State and Federal law

4.  Subsequent to this acknowledgement, on 1 April 2005, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of homosexuality.  Her intermediate commander recommended approval of the discharge action with the issuance of an honorable discharge. 

5.  On 11 April 2005, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with an honorable characterization of service.  Accordingly, she was discharged on 23 April 2005.  

6.  The DD Form 214 she was issued shows she was discharged under the provisions of chapter 15 of Army Regulation 635-200 and her service was characterized as "Honorable."  Her DD Form 214 shows in:

* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph    15-3b
* Item 26 - JRB
* Item 27 (Reentry (RE) Code) - RE-4
* Item 28 (Narrative Reason for Separation) - Homosexual Admission

7.  On 5 June 2006, the Army Discharge Review Board (ADRB) reviewed her discharge and determined it was equitable and proper.  As such, the ADRB denied her petition for a change to the narrative reason for separation.  

8.  Army Regulation 635-200, chapter 15 at the time, prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JRB" was the correct code for Soldiers separating under paragraph 15-3 for homosexuality. 

10.  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 DADT or prior policies.  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" (Separation Program Designator (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 and 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 served in the Regular Army from 14 November 2002 through 23 April 2005.  During her military service, she admitted to being a homosexual.  Her chain of command initiated separation action against her.  Her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The honorable characterization of service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.  She was appropriately assigned SPD JRB. 

2.  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 characterizations of service changed.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, her overall record of service merits a change to the reason for separation to Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

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 voiding her DD Form 214 and issuing her a new DD Form 214 to show she was discharged by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 



      _______ _   __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)                                         AR20130019796





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019796



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1