IN THE CASE OF: BOARD DATE: 19 June 2012 DOCKET NUMBER: AR20120000023 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 the separation authority and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be removed/changed. 2. The applicant states, in effect: * he cannot get a job * he was told his DD Form 214 would not show homosexual admission * based on the new gay law he does not believe it should be on his DD Form 214 3. The applicant provides: * Army Discharge Review Board (ADRB) proceedings * DD Form 214 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 on 3 July 1996. He completed his training and was awarded military occupational specialty 31B (Military Police). He remained on active duty through continuous reenlistments. 3. The facts and circumstances surrounding his discharge are not contained in the available records. However, his DD Form 214 shows he was honorably discharged on 3 August 2005 under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexual admission with a separation program designator (SPD) code of "JRB," and a reentry (RE) code of "4." He completed 9 years, 1 month, and 1 day of total active service. 4. 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 (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 Don't Ask, Don't Tell (DADT) or prior policies. 5. The memorandum states that effective 20 September 2011, Service DRB's 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 * RE code to an immediately-eligible-to-reenter category 6. 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 7. 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. 8. 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 to the contrary it is 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. There were no aggravating factors in the record, such as misconduct. 4. Therefore, the applicant's DD Form 214 should be amended to show his: * narrative reason for discharge as "Secretarial Authority" * SPD code as "JFF" * RE code to an immediately-eligible-to-reenter category "1" 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 voiding the previously-issued DD Form 214 and issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1" effective 3 August 2005. _______ _ 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) AR20120000023 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000023 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1