IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140004498 


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 her Reentry (RE) Code be changed from a "4" to a "1," and that she be assigned a more favorable narrative reason for separation.

2.  The applicant states, in effect, that she was discharged due to admission of homosexuality/bisexuality prior to “Don’t Ask – Don’t Tell” (DADT) and even though she did not tell, she was unwillingly discharged after a lengthy and torturous investigation.  There were no aggravating factors, she was an excellent Soldier, and she received the Army Good Conduct Medal upon her discharge.

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and orders awarding her the Army Good Conduct Medal and Army Achievement Medal.

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 4 January 1989 for a period of 4 years, training as a military police, and assignment to Europe.  She completed her one-station unit training (OSUT) at Fort McClellan, Alabama and was transferred to Germany on 25 May 1989.

3.  On 27 July 1990, her commander notified her that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3a, based on her stated desire to engage in homosexual activity.

4.  After consulting with counsel, she submitted a request for a conditional waiver, in which she agreed to waive consideration by an administrative separation board in return for receiving an honorable discharge.

5.  The appropriate authority approved the recommendation on 16 August 1990 and directed she be furnished an Honorable Discharge Certificate.

6.  Accordingly, she was honorably discharged on 18 October 1990, under the provisions of Army Regulation 635-200, paragraph 15-3b, due to homosexual admission.  She had served 1 year, 9 months, and 15 days of active service during her current enlistment and was issued a separation code of “JRB” and an RE Code of "4."

7.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  There are no instances of nonjudicial punishment or courts-martial in her records.  

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  
   
   a.  The SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Homosexual Admission."  
	
	b.  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 15-3b.

10.  The 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.

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.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on her own statement that she was a homosexual and there is no evidence of a further finding that she was not a homosexual.

2.  The available evidence shows she was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized her rights.

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 may now have their reason for discharge and RE Code changed.

4.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation.  Additionally, there are no aggravating factors in her records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue her a new DD Form 214 with the characterization as honorable, an SPD code of "JFF," an RE Code of "1," and a narrative reason for separation as "Secretarial Authority."

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 the applicant a new DD Form 214 amending the following items as follows:

* Item 25 (Separation Authority) enter "Army Regulation 635-200, Paragraph 5-3"
* Item 26 (Separation Code) enter the SPD code of "JFF"
* Item 27 (Reentry Code) enter an RE Code of "1"
* Item 28 (Narrative Reason for Separation) enter "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)                                         AR20140004498





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ABCMR Record of Proceedings (cont)                                         AR20140004498



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