IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140017015 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: 

* item 24 (Character of Service) an honorable vice under other than honorable conditions characterization of service  
* item 25 (Separation Authority) something other than Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations), paragraph
14-33a(3)
* item 26 (Separation Code) something other than JKC
* item 27 (Reentry (RE) Code) something other than 4
* item 28 (Narrative Reason for Separation) something other than Misconduct - Homosexual Acts

COUNSEL'S STATEMENT AND EVIDENCE:

1.  Counsel states:

	a.  In 1981, the applicant was discharged from the Army pursuant to the law known as Don't Ask, Don't Tell (DADT) after serving 3 years in the Regular Army (RA), attaining the rank of specialist four (SP4), and being granted numerous commendations for his performance and conduct.  His DD Form 214 shows his service was characterized as under other than honorable conditions, the narrative reason for separation was misconduct - homosexual acts, his separation code was JFC, and his RE code was 4.

	b.  Since his discharge, the government has changed its policy regarding homosexuality in the Armed Forces.  Through the repeal of DADT on 20 September 2011, it has acknowledged that a Soldier's sexual orientation has no bearing on a Soldier's fitness for military service and that homosexual conduct no longer constitutes valid grounds for discharge.  In the light of this shift in military policy, the applicant's DD Form 214 should be changed to show in:

* item 24 - an honorable characterization of service  
* item 25 - AR 635-200
* item 26 - JFF
* item 27 - RE 1 (immediately eligible to reenlist)
* item 28 - Secretarial Authority

	c.  The applicant began his military career in high school by enrolling in the Army Reserve Officer Training Corps (ROTC).  As an ROTC cadet, he attained the rank of Cadet Major and served as the battalion S-2.  He enlisted in the U.S. Army Reserve (USAR) on 18 February 1977 and in the RA on 18 March 1977.  He completed basic training and military education as an [05C] Radio Teletype Operator with honors.  He placed in the top 10 percent of his class, earning the Honor Graduate Diploma and a letter of commendation for his selection and success in the School Brigade Student Leadership.  He attained the rank of Student Sergeant and served as a squad leader.  Upon completion of training, he was stationed in Germany.

	d.  While in Germany, the applicant received several letters of commendation, in part, for his efforts in maintaining and operating…radio teletypewriter set which resulted in his communications section receiving a satisfactory rating by the 42nd Field Artillery Group Signal Officer on all signal Army Training and Evaluation Program (ARTEP) standards; for actively supporting volunteer programs and serving as an adult leader in the local Boy Scout program; and for outstanding performance during the weekly room inspection.  He served in the Army for 2 and 1/2 years before receiving an honorable discharge on 16 October 1979 in the rank of SP4.  He immediately reenlisted in the RA and was stationed at Fort Bliss, TX.

	e.  While at Fort Bliss, the applicant was awarded the Army Good Conduct Medal in recognition of his exemplary behavior, efficiency and fidelity in active Federal military service.  In October 1980, he was subject to disciplinary action for failure to show for formation at the prescribed time; however, he has no other disciplinary actions against him, no record of court-martial, and no other derogatory information in his military record.

	f.  In November 1980, a civilian, Mr. MP, gave a sworn statement accusing the applicant of engaging in and committing homosexual acts in a motel room with him and another service member of equivalent rank to the applicant.  The applicant's commander, Captain KF, initiated an investigation into the allegations and ultimately recommended the applicant for discharge because of misconduct - homosexual acts.  

	g.  As part of the investigation, the applicant was given a mental health examination during which he admitted to engaging in multiple sex acts with men and women and confirmed that he considered himself to be a bisexual.  Lieutenant Colonel CB approved the recommendation noting that "considering the current Army policy concerning homosexuality, I believe the U.S. Army and the applicant would benefit greatly from this action."  Colonel JS also approved the recommendation noting the applicant acknowledged in-service acts of homosexuality indicating that discharge was warranted.  On 18 March 1981, he received an under other than honorable conditions discharge.

	h.  The applicant requests the Board use its authority to correct Army records to amend his DD Form 214 as stated above.  Because of the repeal of DADT, his discharge is inequitable and it is in the interest of justice to correct his DD Form 214.  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 his discharge.  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 his separation.

	i.  The Department of Defense (DoD) has issued special criteria for reviewing and considering the correction of the discharge paperwork of individuals discharged under DADT.  The Board should change his DD Form 214 pursuant to the criteria outlined in the September 2011 DoD memorandum.

2.  Counsel provides:

* DD Form 214
* Certification of Military Service
* thirteen pages of various documents from the applicant's chapter packet
* DA Form 3822 (Report of Mental Status Evaluation)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* two orders 
* seven letters of commendation
* a certificate
* two DD Forms 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States)
* three pages of DD Form 1966 (Record of Military Processing - Armed Forces of the United States)
* DA Form 3286 (Statement of Enlistment - Delayed Entry Program)
* DD Form 2057 (Contributory Education Assistance Program - Statement of Understanding)
* two memoranda

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.  Having had prior active service, the applicant enlisted in the RA on 17 October 1979 and he held military occupational specialty 05C.  On 24 April 1980, he was assigned to Headquarters and Headquarters Battery, 1st Battalion, 55th Air Defense Artillery, Fort Bliss, TX. 

3.  On 24 October 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to report to his place of duty at the prescribed time on 30 September and 9 October 1980.

4.  On 26 November 1980, a Mr. MP reported to the U.S. Army Criminal Investigation Command, hereafter referred to as CID, that he (Mr. MP) was a homosexual and he wanted to file a complaint against the applicant for engaging in homosexual activities with him off the military reservation.  CID reported the allegation to the applicant's chain of command.  

5.  The applicant subsequently underwent a mental status evaluation at the recommendation of his commander.  The DA Form 3822, undated, shows the examining psychiatrist found the applicant's behavior was normal, he was fully alert, his thinking process was clear, his thought content was normal, and he exhibited no psychotic features.  He stated the applicant admitted to sexual acts with both males and females and considered himself bisexual.  He diagnosed him with sexual orientation disturbance (homosexuality) by admission and recommended the applicant for an administrative separation.

6.  On 28 January 1981, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of AR 635-200, paragraph 14-33a for misconduct - homosexuality. 

7.  On 29 January 1981, he consulted with legal counsel and acknowledged notification of the proposed discharge action.  He also acknowledged he 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 him.  He waived his right to appear before a board of officers.

8.  On 3 February 1981, he received NJP under the provisions of Article 15, UCMJ, for failing to report to his place of duty at the prescribed time on 16 and 19 January 1981.

9.  On 10 and 17 February 1981, his intermediate and senior commanders recommended approval of his separation action.

10.  On 6 March 1981, the separation authority approved his discharge for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 18 March 1981, he was discharged accordingly.  

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of AR 635-200, paragraph 14-33a(3), by reason of misconduct - homosexual acts with an under other than honorable conditions characterization of service.  He completed a total of 4 years and 1 day of creditable active service with no lost time. 

12.  His DD Form 214 also shows in:

* Item 25 - AR 635-200, paragraph 14-33a(3)
* Item 26 - JKC
* Item 27 - RE-4
* Item 28 - Misconduct Engaged in Homosexual Act(s)

13.  Except for the NJP he received on two occasions for failing to report at the prescribed time, his record is void of any other disciplinary actions or adverse counseling.
14.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 or other misconduct.  At the time paragraph 14-33a(3) stated homosexual acts are bodily contact between two persons of the same sex, actively undertaken or passively permitted.  Members who were involved in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication normally would not be processed for discharge.   A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

15.  AR 635-200, chapter 15, in effect 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.

16.  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.

17.  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.

18.  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

19.  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.  

20.  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 18 March 1981 under the provisions of Army Regulation 635-200, paragraph 14-33a(3), by reason of having engaged in homosexual acts with an under other than honorable conditions characterization of service.  

2.  His discharge for engaging in homosexual acts based on a CID report and his own admission 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 his 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 two incidents of NJP, his 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 him a new DD Form 214 to show he was discharged effective 18 March 1981 with an honorable characterization of service, under the provisions of AR 635-200, by reason of Secretarial Authority with an SPD code of JFF and an RE code of 1
* issuing him an Honorable Discharge Certificate, dated 18 March 1981, in lieu of the Under Other Than Honorable Conditions Discharge Certificate he 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)                                         AR20140017015



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ABCMR Record of Proceedings (cont)                                         AR20140017015



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