IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140017218 


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 the narrative reason for separation shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that she was discharged due to a medical disability rather than homosexual admission.

2.  She states that she experienced a military sexual trauma in 1999 and following that incident began receiving mental health treatment.  She further states that she was discharged due to a disability, but has since been service connected for post-traumatic stress disorder (PTSD) with schizoaffective disorder, depression and anxiety.  She was in such a bad state after the incident, that she was willing to say anything just to get out of the military.  It was a false statement to claim that she was homosexual, but she knew that if she made this statement she would be discharged from the Army.

3.  She provides two Department of Veterans Affairs (VA) Rating Decisions, dated 22 February 2008 and 20 May 2013.

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.  Her records show she enlisted in the Regular Army on 18 August 1999 and she held military occupational specialty (MOS) 92G (Food Service Specialist).  The highest rank/pay grade she attained during her military service was private (PV2)/E-2.

3.  On 2 October 2000, the applicant rendered a memorandum wherein she informed her unit commander that after struggling with a moral dilemma, it was clear that she must inform the commander of her discovery that she was homosexual.  She stated that she had a natural propensity to engage in sexual activity with members of the same sex, conduct that was prescribed by Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and the Uniform Code of Military Justice (UCMJ) in effect at the time.  The applicant expressed that she sincerely desired to fulfill her enlistment commitment in the Army, but could not do so at the expense of being required to lie to her friends and commanders.  Given her statement of sexual orientation, and since she did not wish to rebut the presumption created under current Department of Defense and Department of the Army regulations, she respectfully requested to be discharged from the Army in accordance with provisions under Army Regulation 635-200, chapter 15 (Separation for Homosexuality).  

4.  On 3 October 2000, she underwent a mental status evaluation due to the fact she was being considered for administrative discharge under the provisions of Army Regulation 635-200, chapter 15.  The Division Psychologist for 101st Airborne Division (Air Assault), Fort Campbell, KY, rendered the following observations and opinions regarding the applicant:

* her behavior was normal
* she was fully alert
* she was fully oriented
* her mood and affect were unremarkable
* her thinking process was clear
* her thought content was normal
* her memory was good
* she had the mental capacity to understand and participate in separation proceedings
* she was psychiatrically cleared for any administrative action deemed appropriate by her command

5.  On 4 October 2000, the applicant's immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200, chapter 15, by reason of admission of homosexuality.  She acknowledged receipt of the commander's notification.

6.  On 4 October 2000, her immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, chapter 15, for having admitted to being homosexual.  He further recommended that the applicant be issued an honorable discharge.  The intermediate commander concurred with the recommendations and forwarded the request to the approval authority.

7.  On 5 October 2000, the separation authority approved the recommended separation action against the applicant in accordance with Army Regulation
635-200, chapter 15, and directed the issuance of an Honorable Discharge Certificate.

8.  On 13 October 2000, she was discharged accordingly.  Her DD Form 214 shows she completed 1 year, 1 month and 26 days of creditable active service during this period.  The form also contains the following entries:

* item 25 (Separation Authority) "Army Regulation 635-200, paragraph 15-3b"
* item 26 (Separation Code) "JRB"
* item 28 (Narrative Reason for Separation) "Homosexual Admission"

9.  Her record is void of any evidence and she has not provided any evidence showing she was diagnosed with PTSD or any other unfitting condition that affected her duty performance during her period of service.

10.  The applicant provides two Rating Decisions, dated 22 February 2008 and 20 May 2013, which show the VA has diagnosed her with service connected PTSD with schizoaffective disorder, depression and anxiety and is providing her compensation based upon a 100 percent disability rating.

11.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Chapter 15, paragraph 15-3b provided that a Soldier could be separated for having admitted to being homosexual or bisexual.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The "JRB" SPD 

code is the correct code for members separating under the provisions of paragraph 15-3b of Army Regulation 635-200 and the narrative reason for separation is "Admission of homosexuality/bisexuality."

13.  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 (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 "Don't Ask Don't Tell (DADT)" or prior policies.

14.  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" and the SPD code to JFF
* characterization of the discharge to honorable
* Reentry Eligibility (RE) code to an immediately-eligible-to-reenter category

15.  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

16.  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.

17.  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 that same or prior periods.  Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her DD Form 214 should be corrected by changing the narrative reason for separation was carefully considered and determined to have partial merit.

2.  Evidence shows she voluntarily rendered a statement, wherein she admitted to being a homosexual and requested to be discharged from the Army.

3.  Evidence also shows she underwent a mental status evaluation as part of pre-separation processing and she was not diagnosed with any type of mental disorder.  As a result, she was psychiatrically cleared for any administrative action deemed appropriate by her command.

4.  The evidence of record shows her separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized her rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of discharge is commensurate with the applicant's overall record of military service.

5.  The applicant's narrative reason for separation was assigned based on the fact she was discharged under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3b, by reason of admission of homosexuality or bisexuality.  The only valid narrative reason for separation permitted under this paragraph and its corresponding SPD code is "Admission of homosexuality."  Therefore, the required narrative reason for separation was applied to her DD Form 214.

6.  Her record is void of any evidence and she has not provided any evidence showing she was diagnosed with PTSD or any other unfitting condition that affected her duty performance during her period of service to warrant a removal of or a change to her narrative reason for separation.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

8.  The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time.

9.  Nevertheless, the law has since been changed.  Soldiers separated solely for homosexuality should now have their reasons for discharge and, when appropriate, characterizations of service changed.
10.  Therefore, the applicant's DD Form 214 should be amended to show her:

* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* RE code to an immediately-eligible-to-reenter category "1" 

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 her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1" effective 13 October 2000.

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 correcting her DD Form 214 to show that she was discharged due to a medical disability.



      _______ _   _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)                                         AR20140017218



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ABCMR Record of Proceedings (cont)                                         AR20140017218



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