IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003869 


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, an upgrade of his undesirable discharge to an honorable discharge based upon the recent revision of statute regarding the "Don't ask, don't tell (DADT)" policy of the military.

2.  The applicant states he had never been in any trouble, but was discharged for being gay [homosexual].  In 1977, he looked into having his discharge upgraded, but was told that his record had been burned up in a fire and as a result, he did not have a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in order to proceed.  About a month ago, he learned that persons who were discharged under other than honorable conditions for homosexuality were eligible for review and possible upgrade of their discharge.  He also learned that some of the records at the National Personnel Records Center had been reconstructed and his might be available.  

3.  He provides his DD Form 214.

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 26 October 1962.

3.  On 28 September 1963, the applicant's command initiated separation proceedings against him under the provisions of Army Regulation 635-89 (Homosexuality) due to homosexuality.

4.  After consulting with counsel, the applicant acknowledged the proposed separation action and waived his rights to appear before an administrative separation board and to submit a statement in his own behalf.

5.  On 30 October 1963, the separation authority directed his discharge under the provisions of Army Regulation 635-89 by reason of homosexuality with service characterized as under other than honorable conditions.

6.  On 12 November 1963, the applicant was discharged under the provisions of Army Regulation 635-89 with a separation program number (SPN) (currently known as separation program designator (SPD)) code of "257," an Undesirable Discharge Certificate, and a character of service of under other than honorable conditions.  He completed 1 year and 17 days of total active service.  His service record does not indicate he received any disciplinary actions for misconduct during this period.

7.  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 (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.

8.  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" and the SPD code to JFF
* characterization of the discharge to honorable
* Reentry Eligibility (RE) code to an immediately-eligible-to-reenter category

9.  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

10.  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.

11.  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 be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.

2.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reasons for discharge and, when appropriate, characterizations of service changed.

3.  Therefore, the applicant's DD Form 214 should be amended to show his:

* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* characterization of service as "Honorable"
* RE code to an immediately-eligible-to-reenter category "1" (although his original DD Form 214 did not reflect an RE Code)



BOARD VOTE:

____X____  ____X____  _____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 discharged with an honorable characterization of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1" effective 12 November 1963.



      ___________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)                                         AR20140003869





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ABCMR Record of Proceedings (cont)                                         AR20140003869



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