IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140002098 


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 uncharacterized discharge be upgraded to honorable.

2.  The applicant states he feels that since "Don't Ask, Don't Tell" (DADT) ended in 2011 his discharge should no longer be considered an uncharacterized discharge.

3.  The applicant provides no additional evidence.

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 8 May 2000.  He was assigned to Troop C, 5th Squadron, 15th Cavalry, Fort Knox, KY.
3.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 5 October 2000 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, paragraph 15-3b by reason of homosexual admission.  He completed 4 months and 28 days of creditable active service.

4.  His DD Form 214 shows the following entries in:

* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - Expert Marksmanship Qualification Badge with Hand Grenade Bar and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16
* item 24 (Character of Service) - Uncharacterized
* item 25 (Separation Authority) - AR 635-200, paragraph 15-3b
* item 26 (Separation Code) - JRB
* item 27 (Reentry (RE) Code) - 4
* item 28 (Narrative Reason for Separation) - Homosexual Admission

5.  His record is void of any record of adverse counseling or disciplinary actions.

6.  On 20 May 2009, the Army Discharge Review Board denied his request to change the narrative reason for his discharge and determined it was both proper and equitable. 

7.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states that a separation would be described as entry level with uncharacterized service if the Soldier had less than 180 days of continuous active duty service at the time the separation action was initiated.

8.  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, United States 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.

9.  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)) and the RE code to an immediately-eligible-to-reenter category.
10.  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

11.  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.  

12.  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 that 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.

13.  Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. 

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with case.  However, his DD Form 214 shows he was discharged on 5 October 2000 under the provisions AR 635-200, paragraph 15b for homosexual admission with an uncharacterized characterization of service.  





2.  In the absence of evidence to the contrary, his discharge for homosexual admission is presumed to have complied with the laws and regulations in effect at the time.  The characterization of his service as uncharacterized was commensurate with the length of time he served on active duty in accordance with the governing regulation.

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 characterizations of service changed.

4.  His record is void of any record of adverse counseling or disciplinary actions.

5.  In view of the foregoing, 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.

6.  He served during a qualifying period for award of the National Defense Service Medal; therefore, his new DD Form 214 should show this medal.

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 honorably discharged effective 5 October 2000 under the provisions of Army Regulation 
635-200, paragraph 5-3, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1 



* adding to item 13 of his new DD Form 214 the National Defense Service Medal 



      _______ _  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)                                         AR20140002098





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ABCMR Record of Proceedings (cont)                                         AR20140002098



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