IN THE CASE OF:	  

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140002121 


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 upgrade of his uncharacterized character of service to honorable.

2.  The applicant states he was discharged because he admitted to being gay.  He states he would have continued serving the United States as a gay American.  He did well in basic training and would likely have been a great Soldier.  He states it would now be unjust for discharging someone for being gay. 

3.  The applicant provides a basic training completion certificate.

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 24 October 1984, the applicant enlisted in the Regular Army.  He completed basic training.

3.  His record contains a psychiatric/psychological report showing on 11 January 1985 he had no significant psychiatric disorder and it was recommended that he be discharged because he reported problems with identity which would make his adaptation to the military communal living unacceptable.

4.  A DA Form 4856 (Developmental Counseling Form), dated 22 January 1985, shows the applicant indicated he was experiencing depression due to the fact that he was homosexual.  He was having trouble adjusting to Army life.

5.  On 26 January 1985, the applicant's commander informed him he was initiating action to separate him because of homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, and advised him of his rights with regard to the proposed action.  The applicant acknowledged receipt of the notification.

6.  On 26 January 1985, the applicant's commander recommended the applicant be eliminated from the service under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality (paragraph 15-3b).

7.  On 30 January 1985, the applicant consulted with counsel who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He waived his rights.  He elected not to submit a statement in his own behalf.

8.  A DA Form 2823 (Sworn Statement), dated 6 February 1985, shows the applicant stated "I am a homosexual."

9.  On 18 February 1985, the separation authority approved the recommendation for discharge under the provisions of chapter 15, Army Regulation 635-200 and directed that the applicant be awarded an entry level separation.

10.  On 5 March 1985, he was discharged accordingly.  His DD Form 214 shows in:

* Item 24 (Character of Service) - Uncharacterized 
* Item 25 (Separation Authority) - Army Regulation 635-200, 
Paragraph 15-3b
* Item 26 (Separation Code) - JRB
* Item 27 (Reenlistment Code) - RE (Reentry Eligibility) - RE 4
* Item 28 (Narrative Reason for Separation) - Admission of Homosexuality/Bisexuality

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

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 describes the different types of characterization of service.  It states an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

	b.  Chapter 15 of the version in effect at the time prescribed the 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 would 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 was to reflect the character of the Soldier’s service.

14.  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 "Don't Ask, Don't Tell (DADT)" or prior policies.

15.  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

16.  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

17.  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.

18.  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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexual admission.  He received a separation code of JRB and RE code of 4.  Evidence shows his discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time and that his rights were protected throughout the discharge process.

2.  The law has since been changed.  Soldiers separated solely for homosexuality should now have the reason for discharge, separation code, RE code and, when appropriate, characterization of service changed.  

3.  In view of the changes in the law, it is now appropriate to issue him a new DD Form 214 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority

4.  He was discharged while he was in an entry-level status.  This status required that his service be uncharacterized.  An uncharacterized discharge is neither positive nor negative.  It simply means the Soldier did not serve on active duty long enough to qualify for a specific characterization of service.  There is no basis for changing the characterization of service shown on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 showing in:

* item 26 (Separation Code) - JFF
* item 27 (RE Code) - 1
* item 28 (Narrative Reason for Separation) - Secretarial Authority


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his uncharacterized character of service to honorable.




      _______ _   _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)                                         AR20140002121



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ABCMR Record of Proceedings (cont)                                         AR20140002121



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