IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140020816 


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, the widow of a deceased former service member (FSM), requests the FSM’s undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states the FSM was discharged as undesirable because she was gay. She was a model Soldier and she served honorably.   

3.  The applicant provides:

* a self-authored statement
* two letters of support
* a picture
* Death Certificate
* Birth Certificate
* Certification of Military Service
* Warranty Deed
* Power of Attorney 

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.  Records show the FSM entered active duty on 6 December 1954.

3.  On 21 September 1955, she was evaluated by the Mental Hygiene Consultation Service for alleged episodes of a homosexual nature.  There was no psychiatric disease diagnosed.  She denied the charge of homosexuality.

4.  On 12 October 1955, she was reevaluated by the Mental Hygiene Consultation Service.  She was diagnosed with "Sexual deviate [sic], homosexuality active role, Class II; chronic, moderate, unchanged."  She verbally acknowledged participation in homosexual acts.  It was recommended that she be separated from the service under provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).

5.  Special Order Number 249, issued by Headquarters, 6th Armored Division and Fort Leonard Wood, MO, dated 24 October 1955, shows she was released from active duty and discharged as undesirable. 

6.  The complete facts and circumstances of her discharge processing are not available for review with this case.  However, her record contains a Certification of Military Service which shows she served on active duty from 6 December 1954 to 26 October 1955 and received an Undesirable Discharge.   

7.  The FSM's record is void of any other adverse counseling statements or disciplinary actions.  

8.  Army Regulation 635-89, in effect at the time, governed separation of homosexuals.  It stated personnel would be discharged under other than honorable conditions if the case fell within Class II.  Class II consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service.

9.  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, United States 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 Don't Ask, Don't Tell" (DADT) or prior policies.

10.  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" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the 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/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 that 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.  The complete facts and circumstances of the FSM's discharge processing are not available for review with this case.  However, based on the available facts, her characterization of service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.
2.  Nevertheless, the law has since been changed, and current standards are now 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.

3.  The FSM’s record is void of any other adverse counseling statements or disciplinary actions.  

4.  In view of the foregoing, it would be appropriate to grant her an honorable discharge and correct her records to show the reason for separation as Secretarial Authority.

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:

* showing the FSM was honorably discharged on 26 October 1955 by Secretarial Authority
* issuing a Honorable Discharge Certificate for her period of service from     6 December 1954 to 26 October 1955




      __________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)                                         AR20140020816





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020816



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1