IN THE CASE OF:
BOARD DATE: 13 January 2015
DOCKET NUMBER: AR20140008946
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 her reentry code (RE code) of "4" be changed and the narrative reason for her discharge be changed to no longer reflect "homosexual admission."
2. The applicant states:
* she was discharged because she admitted she was homosexual and given a RE code of "4"
* she plans to enlist in the Air National Guard and cannot with an RE code of "4"
* the military's Dont' Ask Don't Tell policy has been repealed
3. She provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 6 November 1996.
2. The specific facts and circumstances surrounding her discharge processing are not available for review. However, the available evidence includes a
DD Form 214 that contains the authority and reason for her discharge. It shows she was discharged on 17 November 2000, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4 with a character of service as honorable, separation program designator (SPD) code of JBK, RE code of 4, and the narrative reason for her discharge was completion of required service. Her service record does not indicate she received any disciplinary actions for misconduct during this period.
3. Her record contains a memorandum from Headquarters, XVIII Airborne Corps and Fort Bragg, dated 1 April 2002, Subject: Voiding of DD Form 214, which stated that the DD Form 214 she was issued, dated 17 November 2000, was voided because it contained an erroneous separation code.
4. The applicant was reissued a DD Form 214 to show:
* she was discharged under the provisions of Army Regulation 635-200, chapter 15-3b vice chapter 4
* her SPD code as JRB vice JBK
* the narrative reason for her discharge as homosexual admission vice completion of required service
* her RE code remained 4
5. 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.
6. 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
* Reentry Eligibility (RE) code to an immediately-eligible-to-reenter category
7. 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
8. 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.
9. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record is void of the specific facts and circumstances surrounding her discharge. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed that her 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. Therefore, the applicant's DD Form 214 should be amended to show her:
* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code to an immediately-eligible-to-reenter category "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 issuing her a new DD Form 214 to show she was discharged by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1, effective 17 November 2000.
____________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) AR20140008946
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