IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150005349 


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 her general, under honorable conditions (GD) discharge be upgraded to an honorable discharge (HD). 

2.  The applicant states:

     a.  She was unfairly, unjustly, and wrongly discharged after  2 years and 7 months of service.  She was not engaged in homosexual conduct during her service.  She was accused of being involved with another Soldier.  She was friends with the Soldier and her husband.  She was told that she would be court-martialed, found guilty, and lose her rights as a U.S. citizen.  

     b.  She was so emotionally traumatized that she agreed to anything to stop the verbal threats against her.  She still suffers from post-traumatic stress disorder because of the relentless unfair threats against her and the loss of her military career.  

     c.  She was told at a previous discharge hearing that all her records were burned and they could not or would not reconsider her request for an upgrade of her discharge.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* GD Certificate 
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 Regular Army on 31 May 1960.

3.  On 11 December 1962, her commander requested a psychiatric examination due to possible involvement in homosexual activity.  He proposed to discharge her from the service under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).

4.  In a statement dated 1 December 1962, she waived her right to consideration of her case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement on her own behalf.  She further acknowledged:

* her separation from the Army could be effected by a discharge under honorable conditions
* she may be deprived of many rights and benefits as a veteran under both Federal and State law
* she may encounter substantial prejudice in civilian life
* she had been counseled and advised of the basis for the action recommended
* she had been afforded the opportunity to be represented by counsel and declined to accept   

5.  On 14 December 1962, she was given a psychiatric evaluation due to admitted homosexuality.  She was diagnosed with "Sexual deviate, homosexuality, overt, by description only."  The examining psychiatrist noted:

* her diagnosis did not preclude the possibility of her making a good adjustment in the future
* she was cooperative and forthright throughout the interview
* she was well oriented, rational and coherent
* she displayed normal effect
* there was no evidence of psychotic process
* she was cleared psychiatrically for any administrative disposition deemed appropriate by her command
* she was highly motivated to  remain in the service  

6.  On 22 December 1962, an authorized official directed that she be discharged under the provisions of AR 635-89 with a separation program number (SPN) (currently known as separation program designator (SPD)) of 257 (Unfitness – Homosexual Acts) and that she be given a GD Certificate.

7.  On 31 December 1962, she was discharged under the provisions of Army Regulation 635-89 with SPN "257," a GD Certificate, and a character of service of under honorable conditions.  She completed 2 years and 7 months of total active service.  

8.  Her record is void of any other adverse counseling statements or disciplinary actions.

9.  There is no evidence to show she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.
  
10.  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. 

11.  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.

12.  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

13.  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

14.  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.

15.  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 evidence of record shows the applicant was discharged on 31 December 1962 under the provisions of Army Regulation 635-89 by reason of homosexuality with a GD after she admitted she had a homosexual association with another Soldier. 

2.  Her discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of her service was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

3.  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.  Her 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 applicant was honorably discharged on 31 December 1962 by Secretarial Authority
* issuing an Honorable Discharge Certificate for her period of service from 31 May 1960 to 31 December 1962


      ___________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)                                         AR20150005349





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ABCMR Record of Proceedings (cont)                                         AR20150005349



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