IN THE CASE OF:  	  

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140005085 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge was unjust, that he was wrongfully accused and his rights were violated and given the changes in the law under “Don’t Ask – Don’t Tell” (DADT) his discharge should be upgraded. 

3.  The applicant provides no additional documents with his application.

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 28 February 1968 for a period of 3 years and training as a clerk-typist.  He completed his basic training at Fort Bliss, Texas and his advanced individual training at Fort Huachuca, Arizona before being transferred to Vietnam on 24 July 1968 for assignment to the 67th Evacuation Hospital at Qui Nhon.

3.  The complete facts and circumstances surrounding his administrative discharge are not present in the available records.  However, it appears that he was notified that separation proceedings were being initiated under the provisions of Army Regulation 635-212 and then under Army Regulation 635-89.

4.  A board of officers was convened with the applicant being represented by counsel and the board of officers found that the applicant had engaged in homosexual acts on base with at least two other Soldiers during the period July to September 1968 and recommended that he be furnished an Undesirable Discharge Certificate.

5.  His records also contain a statement by the applicant in which the applicant stated that he had not engaged in homosexual acts until he arrived in Vietnam.  The psychiatric report contained in his records also reiterates the applicant’s claim regarding when his homosexual tendencies started and further opines that the applicant had a homosexual problem and should be eliminated under the provisions of Army Regulation 635-89.

6.  The Criminal Investigation Division (CID) Report in his records also indicates that the applicant had homosexual acts with at least two other Soldiers on base.

7.  Although not fully explained, the applicant departed Vietnam on 1 July 1969 and was transferred to Fort Lewis, Washington where he was discharged under other than honorable conditions under the provisions of Army Regulation       635-212 for unsuitability due to frequent involvement in acts of a discreditable nature (28B).  He had served 1 year, 4 months, and 5 days of active service.

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that when separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

10.  Army Regulation 635-89, in effect at the time, set forth the basis authority for the separation of homosexuals.  It stated that personnel would be discharged under other than honorable conditions if the case falls within Class II.  Class II consisted of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

11.  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 DADT or prior policies.

12.  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

13.  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

14.  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.  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.  The evidence of record clearly shows that the applicant was notified that he was being discharged for engaging in homosexual acts on base with other Soldiers; however, for reasons that are not apparent in the available records he was subsequently discharged for unsuitability instead of homosexuality.  It appears that the type of discharge directed and the reasons for separation were not appropriate considering all the facts of the case.

2.  The evidence suggests that he should have been discharged for homosexuality based on the original circumstances surrounding his notification and thus would have been eligible for a discharge upgrade under the current DADT changes. 

3.  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 his records that would indicate misconduct.

5.  In view of the above, it would be appropriate to issue him 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)                                         AR20140005085





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005085



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1