IN THE CASE OF:  	  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20140004133 


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 character of service.

2.  The applicant states she received an under honorable conditions (general) character of service.  She would like her character upgraded to honorable due to the fact that homosexuals can now serve in the military.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 October 1981 and she held military occupational specialty 98G (Signal Intelligence Voice Interceptor).  She reenlisted on 12 July 1985 and spent the majority of her military service assigned to Company C, 519th Military Intelligence Battalion, Fort Bragg, NC.  The highest rank/grade she attained was sergeant (SGT)/E-5.

2.  Her records, to include her Noncommissioned Officer (NCO) Evaluation Report for the rating period April 1985 through November 1985, show she was an exceptional NCO.  There is no evidence of any negative counseling statements or nonjudicial punishments.  Additionally, she was awarded the Army Good Conduct Medal.

3.  On 5 December 1985, her battalion commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15 (Homosexuality) based on the homosexual relationship she had with another female Soldier from approximately June – November 1985.  Her commander advised her of the basis for the contemplated separation action, the type of discharge she could receive, and of the procedures/rights available to her.

4.  On 6 December 1985, she acknowledged receipt of the separation notification memorandum.  She consulted with counsel and she was advised of the basis of the proposed separation action.  She requested representation by counsel, consideration of her case by an administrative board, appearance before an administrative separation board, and indicated she had submitted a statement in her own behalf. 

5.  On 6 December 1985, her commander initiated separation action against her under the provisions of chapter 15, Army Regulation 635-200 due to homosexuality and recommended she be required to appear before a board of officers.

6.  Her record contains a Report of Mental Status Evaluation, dated 
12 December 1985, which shows she was psychiatrically cleared to participate in separation proceedings.

7.  On 13 February 1986, she waived her rights to representation by counsel, consideration of her case by an administrative board, appearance before an administrative separation board. 

8.  On 24 March 1986, the separation authority approved the proposed discharge action and directed she be discharged under the provisions of chapter 15 of Army Regulation 635-200, by reason of homosexuality and directed she receive a General Discharge Certificate.  

9.  She was discharged from active duty on 3 April 1986.  Her DD Form 214 shows in:

* Item 24 (Character of Service) – Under Honorable Conditions (General)
* item 25 (Separation Authority) – Army Regulation 635-200, paragraph 
15-3a
* item 26 (Separation Code) – JRA
* item 27 (Reenlistment (RE) Code) – 4
* item 28 (Narrative Reason for Separation) – "Engaged, Attempted to Engage in or Solicited Another to Engage in Homosexual Acts"   

10.  There is no indication that she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 15 of that regulation stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribes that SPD code JRA is the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality.  Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

13.  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 the Don’t Ask Don’t Tell (DADT) or prior policies.

14.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* Narrative Reason for Separation to "SECRETARIAL AUTHORITY"
* SPD code to "JFF"
* Characterization to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

15.  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 and there were no aggravating factors in the record, such as misconduct.

16.  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.

17.  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 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 served in the Regular Army from 14 October 1981 to 3 April 1986.  Her chain of command initiated separation action against her based on the homosexual relationship she had with another female Soldier.  Her discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  The under honorable characterization (general) of service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.  

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 characterization of service upgrade to fully honorable by reason of 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 for the period ending 3 April 1986 and issuing her a new DD Form 214 to show she 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." 



      _______ _   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)                                         AR20140004133





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ABCMR Record of Proceedings (cont)                                         AR20140004133



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