IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013345 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  In the alternative, he requests that the narrative reason for his discharge be changed to "misconduct."

2.  The applicant states that at age 23 he suffered from alcoholism, drug addiction, and undiagnosed bipolar disorder and he had no knowledge or support during that time.  He makes no excuses for his behavior but contends that these factors strongly affected the decisions he made during that time.  Further, had he been able to serve openly as a gay man in the U.S. Army in 1984 it would have made things easier for him by not having to deal with the stress of having to hide and lie about who he was.

3.  The applicant provides no additional evidence.

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's record shows he enlisted in the Regular Army on 8 November 1984.  After serving in Korea, the applicant was reassigned to Fort Riley, KS.

3.  On 1 July 1986, he was promoted to the rank/grade of specialist SPC/E-4.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for:

* disobeying the lawful order of a superior noncommissioned officer, punishment included reduction to private first class PFC/E-3
* sodomy by force and without consent, punishment included reduction to private PV2/E-2

5.  On 5 May 1988, a mental status evaluation showed the applicant was diagnosed with severe, chronic, schizotypal personality disorder.  The military physician noted that the applicant's condition was so severe that his ability to function effectively in a military environment was significantly impaired and attempts to rehabilitate him would not be effective.  The medical physician found that the applicant had the mental capacity to understand and participate in discharge proceedings and that he met retention requirements.

6.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain a Decision Paper, dated 15 July 1988, Subject:  Recommendation for Discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  This document shows that the applicant's unit commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 15-3a, based on homosexuality with a characterization of service of UOTHC.

7.  On 22 July 1988, he was discharged.  The DD Form 214 he was issued shows in:

* item 24 (Character of Service):  Under Other Than Honorable Conditions
* item 25 (Separation Authority):  Army Regulation 635-200, paragraph 
15-3a
* item 26 (Separation Code):  JRA
* item 27 (Reenlistment (RE) Code):  RE-4
* item 28 (Narrative Reason for Separation):  Engaged in homosexual acts

8.  There is no evidence to show he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

9.   Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 
   
   b.  Chapter 15 prescribed the general policies, 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 UOTHC 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.  In all other cases, the type of discharge would reflect the character of the Soldier's service.

	c.  Paragraph 3-7a(1) stated an HD was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  Paragraph 3-7b(1) stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time, this regulation prescribed SPD code “JRA” as the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality.  Additionally, the SPD/RE Code Cross Reference Table established RE code 4 as the proper RE code to assign to Soldiers separated under this authority and for this reason.  The SPD code for separation under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense is “JKQ.”  The associated RE code is RE code 4.

11.  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.

12.  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" with a Separation Program Designator (SPD) Code of JFF
* characterization of the discharge to honorable
* the RE code to an immediately-eligible-to-reenter category of RE-1

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 be normally considered as an indication of no 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 requests an upgrade of his UOTHC discharge to an HD or, in the alternative, that the narrative reason for his discharge be changed to misconduct.

2.  The evidence of record shows the applicant twice accepted NJP during his period of service and his second offense, forcible sodomy, led to his discharge.  Regulatory guidance in effect at the time stated that when the sole basis for separation was homosexuality, a discharge UOTHC could be issued only if such characterization was otherwise warranted.  Based on the available evidence, the characterization of his discharge was commensurate with the severity of the offense for which he was discharged.

3.  Lacking evidence to the contrary, the applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.  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 characterizations of service changed.

4.  In this case the applicant's characterization of discharge is not in error. However, based on the applicant's request, it would be acceptable to change the narrative reason for his discharge to misconduct under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of commission of a serious offense, and applying the corresponding separation code of "JKQ" and RE code "RE-4."

5.  In view of the foregoing, the applicant should be granted partial relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 which shows in:

* item 25 the entry "Army Regulation 635-200, Paragraph 14-12c"
* item 26 the entry "JKQ"
* item 27 the entry "RE-4"
* item 28 the entry "Misconduct, Commission of a Serious Offense"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable.



      ____________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)                                         AR20140013345





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ABCMR Record of Proceedings (cont)                                         AR20140013345



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