IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019228 


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 item 26 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show something other than admission of homosexuality/bisexuality.

2.  The applicant states he is making the request based on the don't ask, don't tell (DADT) policy and law.

3.  The applicant provides 23 pages titled DADT, printed on 30 October 2014.

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 (RA) on 23 October 1978 for a period of 3 years and he held military occupational specialty 11B (Infantryman).  On 1 September 1980, he was promoted to the rank/grade of specialist four (SP4)/E-4.  On 29 July 1981, he reenlisted in the RA for a period of 3 years.  

3. On 6 June 1983, he was assigned in a student status to the 8th Student Company, 2nd Battalion, U.S. Army Missile and Munitions Center and School (USAMMCS), Redstone Arsenal, AL.

4.  On 25 July 1983, he was counseled by his company commander and first sergeant on allegations that he had been involved in homosexual behavior.  The applicant admitted that his sexual intentions were homosexual in nature and that he had engaged in homosexual conduct.  He was referred by his commander for a mental health evaluation.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 4 August 1983, wherein it shows, in part:

	a.  The examining psychiatrist found applicant's behavior was normal, he was fully alert and oriented, his mood was unremarkable, his thought process was clear, his thought content was normal, he was mental responsible, and he met the Army retention standards.

	b.  The psychiatrist stated the applicant admitted to participating in homosexual activities and the probability for a change through further counseling was poor.  He cleared the applicant for any action deemed appropriate by the command.

6.  On 25 August 1983,  the applicant was notified by his immediate commander that he was initiating separation against him under the provisions of Army Regulation 635-200, (Personnel Separations - Enlisted Personnel), paragraph 15-3b, for homosexuality.  He stated the reasons were because of the applicant's admission that he had engaged in homosexual conduct and homosexuality was incompatible with continued military service.  

7.  On 25 August 1983, he was counseled by legal counsel on the basis for the separation action initiated against him for admission of homosexuality, its effects, and the procedures and rights available to him.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a general, under honorable conditions discharge.  He further acknowledged he understood that if he was discharged under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life.  He waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.  
8.  On 12 September 1983, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 15, and directed the applicant's service be characterized as honorable (emphasis added).  On 19 September 1983, he was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was honorably discharged in the rank of SP4 under the provisions of Army Regulation 635-200, paragraph 15-13b, for homosexuality.  His DD Form 214 also shows the following entries in:

* item 26 (Separation Code) - JRB
* item 27 (Reenlistment (RE) Code) - 4
* item 28 - Admission of homosexuality/bisexuality

10.  His record is void of any record of adverse counseling or disciplinary actions.

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.  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 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.  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 applicant's discharge proceedings were conducted in accordance with law and regulations in effect at the time and the reason for his discharge was listed on his DD Form 214 in accordance with governing regulations in effect at the time.

2.  Nevertheless, the law has since 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 characterization of service changed.

3.  The evidence of record confirms the applicant received an honorable discharge on 19 September 1983 by reason of admission of homosexuality; therefore, his record should be corrected as shown 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 honorably discharged on 19 September 1983 by reason of Secretarial Authority (SPD JFF) with 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)                                         AR20140019228





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019228



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1