BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140009596 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the separation authority, separation program designator (SPD) code, reentry eligibility (RE) code, and narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 April 1997 be changed.  

2.  Counsel states:

	a.  Because the repeal of "Don’t Ask, Don't Tell " (DADT) renders the applicant's discharge inequitable, it is in the interest of justice to correct her 
DD Form 214.

	b.  The current policy regarding homosexual conduct in the military represents a substantial enhancement of the rights of Service members as compared to those rights applicable to the applicant at the time of her discharge.

	c.  There is substantial doubt that the applicant would have been discharged had the current military policy with regard to homosexual conduct been in place at the time of her separation.

	d.  The applicant's DD Form 214 should be changed pursuant to the criteria outlined in The Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011.

3.  Counsel provides a 17-page brief with 13 exhibits and an index.

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.  On 17 March 1994, she enlisted in the Regular Army for a period of 4 years.  

3.  On 9 December 1994, she was assigned to the 82nd Airborne Division Band at Fort Bragg, NC.  She was promoted to sergeant/E-5 on 1 August 1996.  She was awarded her first award of the Army Good Conduct Medal for service from 17 March 1994 to 16 March 1997.

4.  On 3 April 1997, she was given a mental status evaluation by the division psychiatrist.  The examiner found she met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined she was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  She was psychiatrically cleared for any administrative action deemed necessary by her command.

5.  The applicant's commander notified her that under the provisions of 
chapter 15 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel) he was initiating action to separate her for homosexual misconduct with an honorable discharge.  The reasons for his proposed actions were:

* a complaint of her alleged announcement of a homosexual marriage
* a complaint of an alleged public display of affection with another woman

6.  The commander advised the applicant of her right to:

* have her case considered by a board of officers
* appear in person before a board of officers
* submit statements in her own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge and request her case be presented before a board of officers

7.  On 25 March 1997, she acknowledged receipt of the notification of her proposed elimination from active duty.

8.  On 31 March 1997, the applicant waived consideration of her case by an administrative separation board contingent upon her receiving a characterization of service or description of separation no less favorable than honorable.  She indicated she was submitting statements in her own behalf. However, this statement was not available for review.  The applicant also noted that this was not an admission to homosexuality; however, she was waiving her right to a board because she did not know how to fight certain false statements made against her.

9.  The applicant also acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

10.  On 31 March 1997, the applicant's commander recommended she be separated from the Army prior to the expiration of her term of service.  His specific factual reason for the action recommended was the findings and recommendation of investigation in accordance with Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) resulting in sufficient evidence which supported alleged homosexual conduct which was incompatible with military service.

11.  On 1 April 1997, the separation authority approved the recommendation for discharge and directed she be issued an Honorable Discharge Certificate.

12.  On 17 April 1997, she was discharged.  Her DD Form 214 shows in:

* Item 25 (Separation Authority) - Army Regulation 635-200, 
Paragraph 15-3a
* Item 26 (Separation Code) - "JRA"
* Item 27 (Reenlistment Code) - "3"
* Item 28 (Narrative Reason for Separation) - "Homosexual Act"

13.  There is no evidence the homosexual acts occurred by use of force, coercion, or intimidation. 

14.  Paragraph 15-3(5a) of Army Regulation 635-200, in effect at the time, stated a Soldier would be discharged if the Soldier had engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts.

15.  Table 2-2 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Personnel Separations, Separation Documents), in effect at the time, established an RE code of "4" as the proper RE code to assign Soldiers who were separated with a separation code of "JRA."

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  

	a.  The SPD code of "JRA" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Homosexual Act."

	b.  The authority for this SPD code was Army Regulation 635-200, paragraph 15-3(5a).

17.  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.

18.  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

19.  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

20.  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.

21.  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.  Army regulations, in effect at the time of her discharge, required that a member who was found to have committed a homosexual act be discharged.
The applicant was processed for discharge based on complaints of her alleged announcement of a homosexual marriage and an alleged public display of affection with another woman.  There is no evidence of a further finding that she was not a homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized her rights.

3.  Nevertheless, 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 should 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.  

5.  In view of the above, it would be appropriate to issue her a new DD Form 214 with the characterization as honorable, the separation authority as "Army Regulations 635-200, paragraph 5-3 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 individual a new DD Form 214 showing in:

* Item 25 - "Army Regulation 635-200, Paragraph 5-3"
* Item 26 - the SPD code of "JFF"
* Item 27 - an RE code of "1"
* Item 28 - "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)                                         AR20140009596



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ABCMR Record of Proceedings (cont)                                         AR20140009596



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