IN THE CASE OF:  	  

		BOARD DATE:  19 February 2015	  

		DOCKET NUMBER:  AR20140011370 


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 Item 25 (Narrative Reason for Separation) on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

   a.  the "Admission of Homosexuality" entry shown on her DD Form 214 is an injustice and embarrassment when presenting this document to employers; 
   
   b.  she is not a lesbian and was married to a violent abusive Soldier that sought out revenge against her to have her discharged; 
   
   c.  her discharge was not morally right; and
   
   d.  her husband doctored a piece of paper to make it appear she was married to another woman to get her kicked out of the service when in fact, he was cheating on her with other Soldiers.

3.  The applicant provides a copy of her 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 19 March 1981.  She was trained in and awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  Her official military personnel file (OMPF) contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) dated 15 April 1985, which shows she was accused of the offense of sodomy.  She acknowledged her rights and willingly agreed to discuss the offense under investigation with a Criminal Investigation Command (CID) investigator.

4.  In a Sworn Statement dated 15 April 1985, the applicant responded as indicated when asked the following questions:

* "Your husband, SP4 W_______ stated that you and M___ J. H______ have been engaging in homosexual acts, is that true? - YES
* Did you marry her in a church in downtown Colorado Springs on 30 March 85?"  - YES
* Was that a homosexual style wedding? – YES
* How many times would you say you engaged in sex with her? – “Every other day."

5.  On 22 April 1985, the applicant underwent a mental evaluation which shows:

* she admitted to one homosexual episode but denied she was a homosexual
* her behavior and thought content were normal
* she was fully alert and oriented
* she had an unremarkable mood
* her thinking process was clear and her memory was good
* she was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings

6.  On 18 June 1985, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for homosexuality.

7.  On 18 June 1985, the applicant initially acknowledged receipt of the commander's notification and subsequently consulted with legal counsel.  She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She elected to:

* waive consideration of her case by a board of officers
* waive personal appearance before a board of officers
* accept representation by counsel
* not submit a statement in her own behalf

8.  On 26 June 1985, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 9 July 1985.

9.  The DD Form 214 she was issued shows she was discharged under the provisions of paragraph 15-3 of Army Regulation 635-200, having completed 4 years, 3 months, and 21 days of creditable active service.  Her DD Form 214 also shows in:

* Item 25 (Separation Authority) - Army Regulation 635-200,
paragraph 15-3b
* Item 26 - JRB
* Item 27 - RE-4
* Item 28 - Admission of Homosexuality

10.  Army Regulation 635-200, chapter 15, at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces. In all other cases, the type of discharge would reflect the character of the Soldier’s service.

11.  The "Don't Ask, Don't Tell" (DADT) policy 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 (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 (to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the RE code to RE-1 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 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 served on active duty from 19 March 1981 to 9 July 1985.  During conversations with a CID investigator and psychiatrist, she admitted to engaging in homosexual acts.  Accordingly, her chain of command initiated separation action against her.

2.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  She received a general, under honorable conditions characterization of service which was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

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 should now have their reason for discharge and characterization of service changed.  The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions.  In view of the foregoing, her overall record of service merits a change in the characterization of service to honorable; the reason for separation to Secretarial Authority, with an SPD code of "JFF" and an RE code of "1."

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 the Department of the Army records of the individual concerned be corrected by voiding her DD Form 214 for the period ending 9 July 1985 and issuing her a new DD Form 214 to show she received an Honorable Discharge by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1."




      _______ _   _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)                                         AR20140011370



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ABCMR Record of Proceedings (cont)                                         AR20140011370



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