IN THE CASE OF:	  

		BOARD DATE:	    20 January 2015

		DOCKET NUMBER:  AR20140005234 


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 his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states the crime for which he was convicted is no longer a crime: homosexual, violation of Article 125, Uniform Code of Military Justice (UCMJ).  On 20 September 2010, legislation was signed ending the ban on gays in the military.

3.  The applicant provides copies of General Court-Martial (GCM) Order Number 27 and his DD Form 214 (Report of Separation from Active Duty). 

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 6 June 1971.  He was awarded the Area of Concentration of 31542 (Special Forces Infantry Unit Commander).  

3.  He entered active duty on 24 September 1971.  He was promoted to first lieutenant (1LT) on 24 June 1973.  He served in Germany from 28 November 1972 through 1 September 1975.

4.  On 9 January 1976, he was convicted by a GCM of one specification of committing sodomy with a junior enlisted Soldier.  He was sentenced to dismissal from the service.  On 31 March 1976, the convening authority approved his sentence and forwarded the record of trial to the U.S. Army Court of Military Review.  The Record of Trial is not available.

5.  On 12 May 1976, the Criminal Law Division found no legal objection to the applicant's release from active duty.

6.  On 28 May 1976, he was dismissed under the provisions of Army Regulation 635-120 (Officer Separations), chapter 12.  He was credited with completing 4 years, 8 months, and 5 days of net active service.  His service was characterized as UOTHC.  

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  Also on an unknown date, the U.S. Court of Military Appeals denied his request for a review of his case.

8.  Headquarters, Department of the Army, Washington, DC, GCMO Number 27, dated 25 October 1978, shows that after completion of all required post-trial and appellate reviews, the Assistant Secretary of the Army (Manpower and Reserve Affairs) ordered the applicant's dismissal duly executed effective 25 October 1978.

9.  The following was added to item 27 (Remarks) of his DD Form 214:

      a.  Item 9c (Authority and Reason) – Dismissal effective 25 October 1978 per GCM Order Number 27, dated 25 October 1978, released from active duty (REFRAD) on 28 May 1976 pending completion of appellate review.

      b.  Item 9d (Effective Date) – REFRAD 28 May 1976.

      c.  Item 9f (Type Of Certificate Issued) – None, Dismissed.

10.  Army Regulation 635-120, in effect at the time, established policies and procedures for officer resignations and separations.  Chapter 12 of the regulation stated an officer who had been convicted and sentenced to dismissal as a result of GCM proceedings would, pending appellate review of such proceedings, be processed to be relieved from active duty upon final determination in Headquarters, Department of the Army. 

11.  Don’t Ask Don’t Tell (DADT) was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay, or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married or attempted to marry someone of the same sex.

12.  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 (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" and assign separation program designator (SPD) code JFF)
* characterization of the discharge to honorable
* the reentry eligibility code to an immediately-eligible-to-reenter category

13.  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

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.

15.  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 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 applicant was convicted by a GCM on 9 January 1976 and sentenced to dismissal from the Army.  The Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his request for a review of his case.  On 25 October 1978, the Assistant Secretary of the Army (Manpower and Reserve Affairs) ordered the applicant's dismissal duly executed effective 25 October 1978.  His character of service was UOTHC.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Further, the act of consensual sodomy in this case, whether in a homosexual or heterosexual context remains violative of the UCMJ and the customs of the service as fraternization given the applicant's status as a commissioned officer and his co-actor's status as an enlisted member.

4.  Without evidence to the contrary, his separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

5.  Although DADT was repealed effective 20 September 2011, the DOD guidance does not mean a change in the reason for discharge is automatic.  Accordingly, the available evidence does not warrant a change to the reason for discharge to Secretary Authority.  He was dismissed as a result of a GCM.  Without evidence to the contrary, it appears his dismissal proceedings were conducted in accordance with law and regulations in effect at the time.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20140005234



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ABCMR Record of Proceedings (cont)                                         AR20140005234



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