BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015601 


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, in effect, her discharge be upgraded to honorable.

2.  The applicant states she does not want item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the entry "Engaged in Homosexual Act(s)."  This was never proven and she was specifically told this would not be put on her DD Form 214.  This statement has hurt her ever since she was issued the DD Form 214.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 February 1985.  On 15 July 1985, she was assigned to Company A, 8th Signal Battalion, Germany.  On 1 February 1986, she was promoted to the rank/grade of private first class (PFC)/E-3.  

2.  On 4 September 1986, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully failing to report to the staff duty officer (SDO) as ordered.  

3.  In September 1986, the U.S. Army Criminal Investigation Command, hereafter referred to as CID, conducted an investigation into allegations that a female Soldier in the 8th Signal Battalion was engaged in homosexual relationships.  

4.  During the investigation, at least two Soldiers stated they saw the Soldier under investigation lying in bed under the covers with the applicant and it sounded like they were kissing each other.  They believed the applicant was in a homosexual relationship with the Soldier.  

5.  On 14 January 1987, she was notified by her immediate commander that discharge action was being initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
15-3a for homosexuality.  Specifically, the commander stated that her past and present actions indicated she was a homosexual.  In addition, a CID investigation revealed she was a homosexual as CID obtained sworn statements from individuals who were eyewitnesses to such fact.  He stated if the discharge action was approved she may be issued an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 14 January 1987, she consulted with legal counsel and acknowledged notification of the proposed discharge action.  She also acknowledged she was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to her.  On 14 January 1987, she waived her right to appear before a board of officers on the condition she receive a general, under honorable conditions discharge.

7.  On 22 January 1987, the separation authority approved her discharge and directed the issuance of a General Discharge Certificate.  On 30 January 1987, she was discharged accordingly.  

8.  The DD Form 214 she was issued confirms she was discharged in the rank of PFC under the provisions of Army Regulation 635-200, paragraph 15-3a by reason of engaged in homosexual act(s) with an under honorable conditions (general) characterization of service.  She completed 1 year, 11 months, and 23 days of creditable active service.  

9.  Her DD Form 214 also shows in:

* 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 - Engaged in Homosexual Act(s)

10.  Except for the NJP she received on one occasion for failing to report to the SDO, her record is void of any other disciplinary actions or adverse counseling.
11.  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 (emphasis added).  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

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 "Don't ask, don't tell" (DADT) or prior policies.

13.  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," the Separation Program Designator (SPD) Code to JFF and the RE code to an immediately-eligible-to-reenter category.

14.  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

15.  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.  

16.  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 was 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 period.  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 evidence of record confirms the applicant was discharged on 30 January 1987 under the provisions of Army Regulation 635-200, paragraph 15-3a, by reason of having engaged in homosexual acts with an under honorable conditions characterization of service.  

2.  Her discharge for engaging in homosexual acts based on a CID investigation complied with the laws and regulations in effect at the time.  The separation authority, separation code, RE code, and narrative reason for separation listed on her DD Form 214 were appropriate and in accordance with the governing regulations then in effect.

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 characterizations of service changed.

4.  Other than one incident of NJP, her record is void of any additional disciplinary actions or adverse counseling.

5.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 her a new DD Form 214 to show she was discharged effective 30 January 1987 with an honorable characterization of service, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1
* issuing her an Honorable Discharge Certificate, dated 30 January 1987, in lieu of the General Discharge Certificate she now holds



      _______ _  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)                                         AR20140015601



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015601



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1