IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150004341 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, correction of the narrative reason for his separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he recently discovered admission of homosexuality/ bisexuality is no longer a reason to be discharged. 3. The applicant provides no additional 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 enlisted in the Regular Army on 16 July 1987. 3. On 8 November 1989, he signed a DA Form 2823 (Sworn Statement) indicating he was homosexual, he engaged in homosexual acts with other men, and his desire to continue engaging in homosexual acts. He requested discharge from the Army as a result. 4. On 15 November 1989, his commander informed him he was initiating action to separate him for homosexual conduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, and advised him of his rights. His commander stated he was recommending an honorable discharge. 5. His DA Forms 3822-R (Report of Mental Status Evaluation), dated 16 November and 21 November 1989, both show he had the mental capacity to understand and participate in proceedings and he was mentally responsible. He was psychiatrically cleared for any administrative action deemed appropriate by his commander. 6. On 15 November 1989, he consulted with counsel who advised him of the basis for his contemplated separation and its effects and the rights available to him. He waived consideration of his case and a personal appearance before an administrative separation board. 7. On 20 December 1989, the separation authority approved the applicant's separation and directed characterization of his service as general under honorable conditions under the provisions of Army Regulation 635-200, chapter 15, for homosexuality. 8. On 28 December 1989, contrary to the separation authority's directive, he was honorably discharged. His 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) – 3 * item 28 (Narrative Reason for Separation) – Admission of Homosexuality/ Bisexuality 9. There is no indication the applicant applied to the Army Discharge Review Board for a change in his narrative reason for separation within that board's 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 of the version in effect at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 11. 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 "Don't Ask, Don't Tell (DADT)" or prior policies. 12. This 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 code to "JFF" * character of service to honorable * 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 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 was 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 applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 15, by reason of homosexual admission. He was assigned a separation code of JRB and an RE code of 3. His discharge proceedings were conducted in accordance with law and regulations in effect at the time and his rights were protected throughout the discharge process. 2. The law has since been changed. Soldiers previously separated solely for homosexuality should now have the reason for discharge, separation code, and RE code changed. 3. In view of the changes in the law, it would now be appropriate to issue him a new DD Form 214 showing in: * item 26 – JFF * item 27 – 1 * item 28 – Secretarial Authority 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 showing in: * item 26 – JFF * item 27 – 1 * item 28 – Secretarial Authority ____________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) AR20150004341 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004341 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1