IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140004736 


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 correction of the following entries on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

	a.  his character of service as "honorable";

	b.  his narrative reason for separation as "Secretarial Authority";

	c.  his separation code as "JFF"; and

	d.  his reentry (RE) code as "RE-1J."

2.  The applicant states:

	a.  Under current policy, the Army would not have commenced the investigation that led to the discovery of his homosexual conduct or the discharge proceedings that led to his separation from the Army.

	b.  "Don't Ask, Don't Tell (DADT)" and its prior policies, such as Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, under which he was discharged, have been repealed.

3.  The applicant provides, via counsel, a 26-page legal brief with exhibits.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show his character of service as "honorable," his narrative reason for separation as "Secretarial Authority," his separation code as "JFF," and his RE code as       "RE-1J."

2.  Counsel states:

	a.  The Army discharged the applicant in December 1989 solely because he engaged in consensual homosexual conduct with another service member of the same rank, in private, while off duty, on the weekend, and in a non-military location.  No other individuals or service members were present or involved.

	b.  The applicant excelled as a single-channel radio operator and voluntarily extended his service to serve 3 years abroad.  While abroad, the applicant overcame the family turmoil that for a period impaired his ability to serve.  He admitted himself to treatment for off-duty alcohol abuse and he was never disciplined beyond serving extra duty and restriction as a result of his progress in treatment.  After an Army investigation into homosexual conduct, the Army discharged the applicant solely for sexual conduct, absent aggravating circumstances.

	c.  Since his discharge, the applicant has been a model citizen and has consistently made a positive contribution to the lives of his family members, friends, fellow church members, customers, and fellow Texans.  He has been married since 1999.  He supports his wife in her career as an engineer and has taken primary responsibility for raising their 13-year old son.

	d.  It is in the interest of equity for the Board to change the applicant's narrative reason for separation, separation code, and RE code in light of the repeal of DADT.

	e.  It is in the interest of equity for the Board to change the applicant's character of service to honorable in consideration of his service record and extenuating factors which affected his ability to serve.

3.  Counsel provides 56 exhibits as outlined in the legal brief.





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 August 1985 for 4 years.  He completed his training and was awarded military occupational specialty 31C (Single Channel Radio Operator).

2.  On 19 June 1989, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order to perform extra training for continual physical security violations and report every 2 hours to the unit and log in the completion of his security checks.

3.  On 5 September 1989 in a sworn statement, he admitted he had engaged in homosexual acts with another Soldier.  On 24 September 1989, discharge proceedings were initiated against him for homosexuality under the provisions of Army Regulation 635-200, chapter 15.  The separation authority approved the recommendation for separation and directed the issuance of a general discharge.

4.  On 5 December 1989, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexual conduct (engaged in, attempted to engage in, or solicited to engage in homosexual acts).  He completed 4 years, 3 months, and 13 days of total active service.  He was assigned a separation code of "JRA" and an RE code of "RE-4."

5.  Counsel provided 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, which states, in part, Service DRB's should normally grant requests in these cases to change the RE code to an immediately-eligible-to-reenter category (the new RE code should be "RE-1J").

6.  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.

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

* characterization of the discharge to "honorable"
* narrative reason for discharge to "Secretarial Authority" and the separation code to "JFF"
* RE code to an immediately-eligible-to-reenter category

	b.  For the above upgrades to be warranted, this 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

	c.  This 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.

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

7.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  The code "RE-1" applies to persons completing an initial term of active service who were fully qualified when last separated.  The code "RE-1J" is not a valid Army RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for homosexuality were conducted in accordance with the 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, characters of service changed.

3.  The NJP the applicant received for disobeying a lawful order was noted.  However, it appears this misconduct was minor, not sufficient to have made the commander consider separating him for misconduct, and appears not to have been an aggravating factor related to his separation for homosexuality.

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

* his character of service as "honorable"
* his narrative reason for discharge as "Secretarial Authority"
* his SPD code as "JFF"
* his RE code as "RE-1"

5.  The applicant's request to change his RE code to "RE-1J" was noted.  However, "RE-1J" is not a valid Army RE code.  The governing regulation states "RE-1" applies to persons completing an initial term of active service who were fully qualified when last separated (an immediately-eligible-to-reenter category).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 voiding the previously-issued DD Form 214 and issuing him a new DD Form 214 to show:

* his character of service as "honorable"
* his narrative reason for discharge as "Secretarial Authority"
* his SPD code as "JFF"
* his RE code as "RE-1"
2.  The Board further determined 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 changing his RE code to "RE-1J."




      _____________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)                                         AR20140004736



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ABCMR Record of Proceedings (cont)                                         AR20140004736



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