IN THE CASE OF: 

		BOARD DATE:	    12 August 2014

		DOCKET NUMBER:  AR20130019991 


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, in effect, correction of the reason and authority for his discharge.

2.  The applicant states the repeal of the "Don't Ask, Don't Tell" policy now allows openly gay/homosexual service members to serve.  His discharge should be upgraded to reflect this new policy.

3.  The applicant provides his 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.  The applicant enlisted in the Regular Army on 28 August 1986 and after completing his initial training he was assigned to Fort Riley, KS.

3.  His record contains a Polygraph Examination Request issued by the U.S. Army Criminal Investigation Command (USACIDC), Fort Riley, KS.  This document shows that the applicant reportedly sexually harassed two Soldiers, on two separate occasions.  The applicant was questioned by his company commander and denied the allegations and agreed to submit to a polygraph examination to verify the truthfulness of his statements.  His record is void of any documentation showing he completed this examination or the results of such an examination.

4.  On 20 January 1995, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation (AR) 635-200, chapter 15 for homosexuality.  Specifically, the commander cited statements made by two Soldiers alleging that the applicant made sexual advances toward them.  The commander recommended he receive an under honorable conditions (general) discharge.

5.  On 27 January 1995, he waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He also acknowledged he understood that as a result of issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  On 8 March 1995, the applicant requested a conditional waiver of his separation in accordance with Army Regulation 635-200, chapter 15.  Having consulted with counsel he voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than honorable.

7.  On an unknown date, the separation authority approved his discharge under the provisions of AR 635-200, chapter 15.  He directed that the applicant receive an Honorable Discharge Certificate.  On 31 March 1995, he was discharged accordingly.  

8.  The DD Form 214 he was issued confirms he was honorably discharged under the provisions of AR 635-200, paragraph 15-3a by reason of homosexual acts.


9.  His DD Form 214 also shows the following entries in:

* item 25 (Separation Authority) - AR 635-200, paragraph 15-3a
* item 26 (Separation Code) - JRA
* item 27 - 4
* item 28 - Homosexual Act

10.  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.

11.  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

12.  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

13.  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.

14.  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.  The evidence of record confirms the applicant was honorably discharged on 31 March 1995 under the provisions of AR 635-200, paragraph 15-3a by reason of a homosexual act.

2.  His discharge complied with the laws and regulations in effect at the time.  The separation authority, separation code, RE code, and narrative reason for separation listed on his DD Form 214 were appropriate and in accordance with the governing regulations then in effect.

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 changed.  Therefore, he should be issued a new DD Form 214 to show he was honorably discharged under the provisions of AR 635-200, paragraph 5-3 by reason of Secretarial Authority, with an SPD code of JFF, and an RE code of 1.

4.  In view of the foregoing, his request should be granted.

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 a new DD Form 214 which shows in:

* item 24 (character of Service) "Honorable"
* item 25 the entry "Regulation 635-200, Paragraph 5-3"
* item 26 the entry "JFF"
* item 27 the entry "RE-1"
* item 28 the entry "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)                                         AR20130019991





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ABCMR Record of Proceedings (cont)                                         AR20130019991



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