IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015	  

		DOCKET NUMBER:  AR20150000858 


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 an upgrade of his under other than honorable conditions discharge to honorable.

2.  The applicant states he resigned in lieu of court-martial because his service was prior to the Don't Ask Don't Tell (DADT) policy and an administrative discharge was not an option at the academy during that period.  His prior service and time at the academy were exemplary.  Now that DADT has been repealed and homosexuality is no longer a dismissible offense, he respectfully requests his discharge be upgraded.  

3.  The applicant provides his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 30 June 1987 and 7 February 1991.

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 21 July 1983, held military occupational specialty 71L (Administrative Specialist), and attained the rank/grade of sergeant (SGT)/E-5.  He was honorably released from active duty on 30 June 1987 to enter the U.S. Military Academy (USMA) (West Point) as a cadet.  

3.  The applicant's record indicates he began serving as a West Point cadet on 
1 July 1987.

4.  His record does not contain a separation packet.  As such, the complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record does contain a:

	a.  DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 29 June 1990, which shows a non-transferable FLAG was initiated on 
30 April 1990 for the following reasons:

* Adverse action - Court-martial
* Security - Derogatory 

	b.  DD Form 214, which shows he was discharged on 7 February 1991 with an under other than honorable conditions characterization of service, under the provisions of Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees), by reason of resignation in lieu of court-martial.

5.  Army Regulation 612-205 contains procedures for processing and strength accounting of Army members and civilians appointed as cadets at the USMA. 

	a.  Paragraph 7 (Separation of cadet candidates from the USMA Preparatory School (USMAPS)) states that RA enlisted personnel who fail to complete the course of instruction and:  (1) Have less than 3 months remaining to end of service term will be separated from active duty and transferred to the US Army Reserve to complete service obligation; or (2) Have more than 3 months remaining to end of service term will be reported for assignment 8.  However, Regular Army enlisted personnel who extended their service obligation specifically to attend the preparatory school and fail to complete the course can be discharged by the Commandant, USMAPS.  This authority is effective on or after the enlisted person's original expiration term of service (ETS) date.


	b.  Table 3 (USMA Cadet Separation Policies) states that if:

		(1)  A cadet is separated during the third year at USMA then he or she will be transferred to the Reserve as an E3 (or appropriate grade) for 2 years and may be ordered to active duty for not less than 2 years.

		(2)  A cadet is separated during the fourth year at USMA then he or she will be transferred to the Reserve as an E4 (or appropriate grade) for 3 years and may be ordered to active duty for not less than 2 years.

		(3)  Each case will be evaluated by a board to determine if the cadet is suitable or unfit for military service.  Each case will be reviewed individually.  The Superintendent will recommend to the Secretary of the Army the minimum active duty obligation or discharge if a waiver of active duty is recommended.  The final decision rests with the Secretary of the Army.

6.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  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.

8.  The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* Narrative Reason for Separation to "Secretarial Authority"
* SPD code to "JFF"
* Characterization to "Honorable"
* RE code to an immediately-eligible-to-reenter category

9.  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 and there were no aggravating factors in the record, such as misconduct.

10.  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.

11.  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 Department of Defense (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 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 applicant requests his under other than honorable conditions character of service be upgraded to honorable, because he resigned in lieu of being court-martialed, in effect, for charges related to being homosexual.

2.  The applicant's sincerity in this matter is not in question.  However, his record did not contain any evidence pertaining to the court-martial charges, and he did not provide any documentation to show the charges were related to homosexuality.

3.  His record only reveals that court-martial charges were preferred against him, that there was some sort of adverse information that was a security issue and may have necessitated a removal of his security clearance, and he submitted his resignation.  However, other than this, and the applicant's own statements, there is no information of record pertaining the actual circumstances surrounding his discharge.
4.  Unfortunately, there is insufficient evidence to justify granting the requested relief at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20150000858



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ABCMR Record of Proceedings (cont)                                         AR20150000858



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