IN THE CASE OF:	

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140019474 


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, correction of his DD Form 214 (Report of Separation from Active Duty) to show a different separation authority, separation code, and narrative reason.

2.  The applicant states:

	a.  He was told he was honorably discharged.  He didn't know what the separation authority (i.e., Army Regulation) and separation program number (SPN) meant until recently.

	b.  He is 100-percent service-connected disabled and taking several medications.

	c.  He served in Vietnam and never had any problems.  He was sent to Vietnam shortly after turning 18 years of age.  He served his tour in Vietnam, lost friends, and received the Army Commendation Medal.  He lost his youth to nightmares which he still has.

	d.  Upon seeing his SPN, his stress and life have become worse.  He is in therapy for severe post-traumatic stress disorder and other medical issues.  He suffers every day and has waited 42 years for relief.

3.  The applicant provides his DD Form 214.



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 1 April 1971 for a period of 3 years.  He completed his training and was awarded military occupational specialty 71B (clerk typist).  He arrived in Vietnam on 9 September 1971.  On 20 March 1972, he was honorably discharged for immediate reenlistment.  He reenlisted on 21 March 1972 for a period of 6 years.  He departed Vietnam on 15 April 1972.

3.  A DA Form 2820 (Statement by Accused or Suspect Person), dated 12 July 1972, shows he admitted to committing homosexual acts while serving on active duty in the Army.

4.  Discharge proceedings were initiated against him for unfitness due to homosexual acts under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He consulted with counsel.  The separation authority approved the recommendation and directed the issuance of an undesirable discharge.

5.  On 2 August 1972, he was discharged for unfitness due to homosexual acts under the provisions of Army Regulation 635-212.  He completed 1 year, 4 months, and 2 days of total active service.  He was issued an Undesirable Discharge Certificate.

6.  On 20 June 1977, his discharge was upgraded to honorable under the Department of Defense (DOD) Special Discharge Review Program. 

7.  Item 2 (Authority and Reason) of his reissued DD Form 214 shows:

* Army Regulation 635-212
* SPN 257 (acceptance of discharge as a result of board action (Class II homosexual))
* DOD Discharge Review Program (Special)
* separation program designator (SPD) KCR

8.  Item 10 (Reenlistment Code) of his reissued DD Form 214 shows a reentry eligibility (RE) code of 4.

9.  Under Secretary of Defense for 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.

10.  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"
* separation code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

11.  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

12.  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.

13.  The memorandum also recognized that although BCM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, 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.

14.  Pertinent Army regulations provide that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.  RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

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

2.  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.

3.  There were no aggravating factors in the applicant's records indicating misconduct.

4.  Therefore, the applicant's DD Form 214 should be amended to show his:

* narrative reason for discharge as "Secretarial Authority"
* separation code as "JFF"
* RE code as "RE-1"

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 voiding the previously-issued DD Form 214 and issuing him a new DD Form 214 showing he was discharged by reason of "SECRETARIAL AUTHORITY" with an SPD code of "JFF" and an RE code of "RE-1" effective 2 August 1972.



      ___________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)                                         AR20140019474



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ABCMR Record of Proceedings (cont)                                         AR20140019474



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