IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150004188 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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her reentry eligibility (RE) code as an immediately-eligible-to-reenter category. 2. The applicant states: * when she got out of the Army "Don't Ask, Don't Tell (DADT)" had not been appealed, but now it has * she wants a new RE code * she received an honorable discharge, but employees see the RE code 4 3. The applicant provides a copy of her 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 13 June 2006 for a period of 4 years. She completed her training and was awarded military occupational specialty 15P (aviation operations specialist). 3. In May/June 2007, the applicant admitted she was homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts. 4. In July 2007, discharge proceedings were initiated for homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15. In August 2007, the separation authority approved the recommendation for separation and directed the issuance of an honorable discharge. 5. On 20 August 2007, she was honorably discharged for homosexual conduct (admission). She completed 1 year, 2 months, and 8 days of total active service. 6. Her DD Form 214 shows in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph  15-3b * item 26 (Separation Code) – JRB * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – homosexual conduct (admission) 7. 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 discharge to "SECRETARIAL AUTHORITY" * separation program designator (SPD) code to "JFF" * characterization of the discharge to "HONORABLE" * RE code to an immediately-eligible-to-reenter category 9. 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 10. 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. 11. The memorandum also recognized that although BCM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, 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. 12. Pertinent Army regulations provide that individuals will be assigned RE codes prior to discharge or release from active duty based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE-1 applies to individuals completing an initial term of active service who were fully qualified when last separated. DISCUSSION AND CONCLUSIONS: 1. 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 RE codes changed. 3. Her DD Form 214 should be corrected to show her: * narrative reason for separation as "Secretarial Authority" * SPD code as "JFF" * RE code as "RE-1" 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 voiding the previously-issued DD Form 214 and issuing her a new DD Form 214 showing she was discharged with an honorable character of service by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "RE-1" effective 20 August 2007. ______________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) AR20150004188 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004188 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1