IN THE CASE OF:	 

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150002704 


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 upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, he was discharged under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality).  The law has since changed and he requests his discharge be upgraded.

3.  The applicant provides no additional documentary evidence.

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's records show he was inducted into the Army of the United States on 30 March 1966.  After completing basic combat training he was sent to advanced individual training (AIT) for military occupational specialty (MOS) 94B (Food Service Specialist).

3.  While in AIT, his records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions.

	a.  On 20 July 1966, for being absent without leave (AWOL) from 16 July 1966 to 20 July 1966.  His punishment consisted of forfeiture of pay, extra duty, and restriction.

	b.  On 12 August 1966, for being AWOL for the period 7 August 1966 to 8 August1966.  His punishment again included forfeiture of pay, extra duty, and restriction.

	c.  On 20 September 1966, for being AWOL from 12 September 1966 to 19 September 1966.  He was reduced to private/E-1, and was required to forfeit pay, be restricted, and serve extra duty.

4.  On 26 July 1966, as part of an investigation by the Military Police, the applicant made a statement where he essentially admitted to being a homosexual and having been involved in homosexual behavior.  He also affirmed he participated in homosexual activities while he was AWOL from his unit.

5.  On 5 August 1966, the applicant received an evaluation from a psychiatrist whose diagnosis stated the applicant was a homosexual.

6.  On 22 August 1966, the applicant's commander initiated separation action under the provisions of Army Regulation 635-89.  He recommended the applicant receive a general discharge under honorable conditions as a Class II homosexual.  

7.  On 23 September 1966, the applicant stated in writing he had been advised of the basis of his commander's contemplated action to separate him.  He:

* waived consideration of his case by a board of officers as well as a personal appearance before a board
* elected not to submit statements in his own behalf
* waived representation by counsel
* acknowledged he could expect to encounter substantial prejudice in civilian life in the event he received less than an honorable discharge
* stated he also understood he could become ineligible for many or all benefits he could otherwise receive as a Veteran
8.  On 6 October 1966, the separation authority approved the commander's recommendation for separation and directed the applicant be issued an Undesirable Discharge Certificate.  On 1 November 1966, the applicant was discharged accordingly.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his character of service was under other than honorable conditions.  The authority for separation was Army Regulation 635-89.  His DD Form 214 shows he completed 6 months and 15 days of net active creditable service and he was not awarded an MOS.  

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-89, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel on active duty who were homosexuals.  It stated:

	a.  Military personnel who voluntarily engage in homosexual acts are not permitted to serve in the Army in any capacity and it is mandatory to ensure their prompt separation.   

	b.  Three classes of homosexuality were identified:

* Class I - cases involving the invasion of the rights of another person, as when the homosexual act is accomplished by assault or coercion; or where the person involved does not willingly cooperate
* Class II - cases where the person has engaged in one or more homosexual acts not within the purview of Class I
* Class III - members in Class III are those who have not engaged in homosexual activities during military service, but have a verified record of preservice homosexual acts

	c.  Enlisted personnel found to be Class II homosexuals would normally be given a discharge under other than honorable conditions.  

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted separations.  

	a.  Paragraph 1-9d defines an honorable discharge as a separation with honor.  Its issuance is conditioned on proper military behavior and proficient performance of duty during the member's current enlistment.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense or offenses.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determining the character of service to be awarded.

	b.  Paragraph 1-9e states a general discharge under honorable conditions is given to an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

13.  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.  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 code (SPD) Code JFF)
* characterization of the discharge to honorable
* the reentry (RE) code to an immediately-eligible-to-reenter category

14.  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 and there were no aggravating factors in the record, such as misconduct (emphasis added).

15.  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 (emphasis added).

16.  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 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.  The applicant served on active duty from 30 March 1966 to 1 November 1966. His chain of command initiated separation action against him.  His discharge proceedings for homosexuality were conducted in accordance with the law and regulations in effect at the time.  His characterization of service was commensurate with the reason for his discharge in accordance with the governing regulations.

2.  The law has since 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 characterizations of service changed.  

3.  While his record does show he received NJP for being AWOL, none of the misconduct reflected in his record would require him to receive a characterization of service less than honorable.

4.  Based upon the foregoing, the applicant's discharge should be upgraded to honorable and the reason for separation should be changed to show 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 amending his DD Form 214 for the period ending 1 November 1966 and issuing him a new DD Form 214 to show he was discharged with an honorable discharge by reason of Secretarial Authority.  The SPD code should be shown as "JFF."




      _______ _   __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)                                         AR20150002704



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ABCMR Record of Proceedings (cont)                                         AR20150002704



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