IN THE CASE OF:	   

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001943 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

	a.  apparently, he had been associating with a friend who was determined to be gay, removed from the service, and sent home;

	b.  when questioned by Central Intelligence Agency personnel on base, he told the truth, indicating he never had any kind of homosexual experience whatsoever when he landed in Okinawa, and at that time in his life, he was still trying to figure it all out;

	c.  he visited a psychiatrist at Kadena Air Force base where a private first class (PFC) asked him questions during his initial visit and during a follow-up, a captain told him he displayed homosexual tendencies; and

	d.  without discussion, he was offered a discharge or general court-martial.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).


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 was enlisted into the Regular Army on 2 February 1960.  He was trained in and awarded military occupational specialty 112.00 (Heavy Weapons Infantryman).

3.  His DA Form 24 (Service Record) shows he was assigned for duty in Okinawa on 24 September 1960.  Section I (Appointments, Promotions, or Reductions) shows he was promoted to PFC/E-3 on 3 May 1960.  

4.  Headquarters, 3rd United States Army Security Agency Field Station, Letter dated 14 March 1961, shows the applicant’s cryptologic and top secret clearance were revoked.

5.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing.  However, it does contain a DD Form 214 which shows he was discharged on 13 April 1961, under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuals) with a separation program number (SPN) (currently known as separation program designator (SPD)) code of "257."

6.  His DD Form 214 also shows he was issued an Undesirable Discharge Certificate and a character of service of UOTHC.  He completed 1 year, 8 months, and 12 days of total active service.  His service record does not indicate he received any disciplinary actions for misconduct during this period.

7.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  The regulation states, in pertinent part, that Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses.  Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 16 years) during military service.  Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate. 

8.  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.

9.  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" and the SPD code to JFF
* characterization of the discharge to honorable
* Reentry Eligibility (RE) code to an immediately-eligible-to-reenter category

10.  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

11.  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.

12.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence showing otherwise, it must be presumed that 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.  Therefore, the applicant's DD Form 214 should be amended to show his:

* narrative reason for discharge as "Secretarial Authority"
* SPD code as "JFF"
* characterization of service as "Honorable"
* RE code to an immediately-eligible-to-reenter category "1" (although his original DD Form 214 did not reflect an RE Code)

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

issuing him a new DD Form 214 to show he was honorably discharged effective 13 April 1961 by reason of Secretarial Authority with an SPD code of JFF and a Reentry 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)                                         AR20150001943





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ABCMR Record of Proceedings (cont)                                         AR20150001943



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