BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140005422 


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 narrative reason for his separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

	a.  He was discharged under "Don't Ask, Don't Tell (DADT)" in 2007 while serving an initial active duty term.

	b.  He would like to reenter military service.

	c.  Although he has a record of nonjudicial punishment (NJP) from his prior enlistment, he has since matured.

3.  The applicant provides his DD Form 214.

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 29 December 2005 for 5 years.

3.  On 2 October 2007, NJP was imposed against the applicant for disobeying a lawful order by drinking underage and driving while under the influence of alcohol.

4.  In October 2007, the applicant admitted he was a homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts.

5.  On 20 November 2007, discharge proceedings were initiated for homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15.  On 28 November 2007, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

6.  On 4 December 2007, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexual conduct admission with a separation program designator (SPD) code of "JRB" and a reentry eligibility (RE) code of "4."  He completed 11 months and 6 days of total active service.

7.  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.

8.  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" and the SPD code to "JFF"
* characterization of the discharge to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

9.  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

10.  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.

11.  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.

12.  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 in 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.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

DISCUSSION AND CONCLUSIONS:

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

3.  The NJP that he received for underage drinking and driving under the influence 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 in the case (i.e., not related to his separation for homosexuality).

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

* character of service as "Honorable"
* narrative reason for separation as "Secretarial Authority"
* SPD code as "JFF"
* RE code as "RE-1"

BOARD VOTE:

___x_____  __x______  _x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the previously-issued DD Form 214 and issuing him a new DD Form 214 showing he was discharged with an honorable character of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "RE-1" effective 4 December 2007.



      __________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)                                         AR20140005422



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ABCMR Record of Proceedings (cont)                                         AR20140005422



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