BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140018941 


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 upgrade of his discharge from general under honorable conditions to honorable.

2.  The applicant states, in effect:

	a.  His commanding officer received a letter from his psychologist suggesting he (the applicant) was bisexual.  His commander, without hesitation, initiated separation action asserting he was not fit to adapt to the military lifestyle.

	b.  On 22 December 2010, the Don't Ask, Don't Tell (DADT) Repeal Act became law.  This law provides for the repeal of the DADT.

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 17 September 1986.  After completing initial training, he was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  The highest rank/grade held was private/E-2.

3.  On 14 May 1987, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 (Separation for Homosexuality), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for homosexuality.  The specific reason for the commander's action was the applicant had admitted he was bisexual.

4.  On 22 May 1987, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of: 

* the basis for the contemplated separation action for homosexuality
* the type of discharge he could receive and its effect on further enlistment or reenlistment
* the possible effects of this discharge
* the procedures/rights that were available to him

5.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  

6.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also affirmed he understood, as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both State and Federal law.

7.  On 3 June 1987, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 by reason of homosexuality with a general discharge under honorable conditions.  He was discharged accordingly on 9 June 1987.

8.  His DD Form 214 shows he completed 8 months and 23 days of net active  service this period.

* item 24 (Character of Service) shows under honorable conditions
* item 25 (Separation Authority) lists paragraph 15-3b, Army Regulation 635-200
* item 26 (Separation Code (SPD)) shows “JRB” (admission of homosexuality/bisexuality)
* item 27 (Reenlistment Code) shows RE-4 (separation with a nonwaivable disqualification)
* item 28 (Narrative Reason for Separation) shows “admission of homosexuality/bisexuality”

9.  A review of the applicant's available record is void of any derogatory information or incidents of misconduct.

10.  Army Regulation 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.  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" 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 may 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 (the change should be to "Secretarial Authority" SPD Code JFF)
* characterization of the discharge to honorable
* the RE code to 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 and 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.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 



DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 17 September 1986 to 9 June 1987.  During his military service, he admitted to being bisexual.  His chain of command initiated separation action against him.  His discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time.  His characterization of service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.  He was appropriately assigned SPD JRB. 

2.  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.  The evidence of record shows the applicant's record is void of any derogatory information or incidents of misconduct.  In view of the foregoing, his overall record of service merits a characterization of service upgrade to fully honorable by reason of 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 all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 9 June 1987 and issuing him a 








new DD Form 214 to show he 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." 



      __________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)                                         AR20140018941





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018941



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1