IN THE CASE OF:	

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019962 


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 his general discharge under honorable conditions be upgraded to an honorable based on the military change in regulations ("Don't Ask, Don't Tell" (DADT)).

2.  The applicant states his friend was murdered in Raleigh, NC while stationed at Fort Bragg, NC.  He was subpoenaed to testify at trial and during the trial it came out that he was gay.  His company commander made the assumption that he was gay also.  He has since been married for 25 years with four children.  He received nonjudicial punishment (NJP) and his promotable status to E-5 was taken away.  His military attorney told him it would be in his best interest to take the general discharge and let it go because the commander would make his life miserable and this incident would follow him wherever he went in his military career.  He feels that this was unjust and living with this for 30 years has given him a low self esteem.  The military has since changed the regulation and he would no longer be discharge for these accusations.

3.  The applicant provides no additional evidence in support of his application.

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.  On 6 June 1979, he enlisted in the Regular Army for 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  On 14 December 1979, he was assigned to Company B, 2nd Battalion (Airborne), 325th Infantry at Fort Bragg, NC.

3.  On 7 December 1981, the applicant's commander notified him that he was recommending him for discharge under the provisions of chapter 15 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel) for homosexuality.  The commander advised the applicant of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers

4.  On 7 December 1981, he was formally counseled by his commander in reference to the above notification of discharge.  The commander indicated the applicant stated he desired the discharge and would waive board action.

5.  The applicant's election of his rights was not available for review.

6.  On 7 December 1981, the applicant's commander recommended him for discharge for the service due to unsuitability under the provisions of chapter 15 of Army Regulation 635-200 due to his homosexuality with homosexual tendencies, desires, or interest but without overt homosexual acts.  The commander stated: 

* the applicant fit the criteria of paragraph 15-4b of chapter 15
* the applicant stated he was a homosexual and stated he desired to be discharged
* the applicant left magazines featuring photographs of nude males where other members of the unit were likely to find them
* a sergeant (SGT) who resided in the same apartment complex as the applicant stated he believes the applicant is a homosexual and that he frequents establishments catering to homosexuals in the Raleigh area
* according to the SGT and the applicant he was an active homosexual prior to his enlistment
* a formal investigation would be necessary to confirm the applicant's claim; however, the commander felt his statement was true

7.  On 4 January 1982, the applicant acknowledged he had been advised by his consulting counsel:

* of the basis for the contemplated action to separate him for homosexuality under the provisions of chapter 15 of Army Regulation 635-200 and its effects
* of the rights available to him
* the effect of any action taken by him in waiving his rights

8.  On 19 January 1982, he accepted NJP for failing to go at the time prescribed to his appointed place of duty, morning formation.

9.  On 25 January 1982, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner noted the applicant had self-professed as a practicing homosexual.  He was cleared for any administrative action deemed necessary by his command.  Separation from the Army would be in the best interest of the military and the individual.

10.  On 1 March 1982, the separation authority approved the recommendation for discharge and directed his service be characterized as under honorable conditions.

11.  On 8 March 1982, he accepted NJP for two specifications of failing to go at the time prescribed to his appointed place of duty, morning formation.

12.  On 18 March 1982, he was discharged.  His DD Form 214 shows in:

* Item 24 (Character of Service) - Under Honorable Conditions (General)
* Item 25 (Separation Authority) - Army Regulation 635-200, chapter 15
* Item 26 (Separation Code) - JML
* Item 27 (Reenlistment Code) - RE (Reentry Eligibility) - 3
* Item 28 (Narrative Reason for Separation) - Unsuitability-homosexuality

13.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The SPD code of "JML" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Unsuitability-homosexuality."

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  

16.  Paragraph 15-4b of Army Regulation 635-200, in effect at the time, stated a Soldier would be separated if the Soldier had stated that he or she was a homosexual or bi-sexual, unless there was a further finding that the Soldier was not a homosexual or bisexual.

17.  The 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 DADT or prior policies.

18.  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"
* SPD code to "JFF"
* character of service to "HONORABLE"
* RE code to an immediately-eligible-to-reenter category

19.  For the above corrections/amendments 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

20.  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.

21.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  Army regulations, in effect at the time of his discharge, required that a member who stated he or she was a homosexual or bisexual be separated unless it was later found the statements were not true.  The applicant was processed for discharge based on his own statements that he was a homosexual.  There is no evidence of a further finding that he was not a homosexual.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.

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 RE code changed.

4.  He received NJP on two occasions.  The NJP was for minor infractions and was not related to the reason he was processed for discharge and there is no established pattern of misconduct in this case.  There are no aggravating factors that would indicate misconduct.

5.  The applicant meets the criteria set forth in the 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 for an upgrade of his discharge.

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 the individual a new DD Form 214 changing the following items in:

* Item 24 enter Honorable
* Item 25 enter "Army Regulation 635-200, Paragraph 5-3"
* Item 26 enter the SPD code of "JFF"
* Item 27 enter an RE code of "1"
* Item 28 enter "Secretarial Authority"




      _______ _   __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)                                         AR20140019962



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ABCMR Record of Proceedings (cont)                                         AR20140019962



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