BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012888 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012888 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by * voiding his DD Form 214 for the period ending 12 July 1994 * issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service by reason of Secretarial Authority (paragraph 5-3 of AR 635-200), with an SPD code of "JFF" and an RE code of "1" 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to RE-1J. __________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. BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150012888 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: The applicant defers his request, statement, and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's military records to show his: * Narrative Reason for Separation as "Secretarial Authority" vice "Homosexual Admission" * Separation Code from "JRB" to "JFF" * Separation Authority from "Army Regulation (AR) 635-200 (Personnel Separations), Para. 15-3B" to "AR 635-200, Para. 5-3" * Reentry (RE) Code from "RE-4” to “RE-1J” 2. Counsel states, in effect, the applicant was discharged for homosexual admission in 1994. However, the Department of Defense has repealed the "Don't Ask, Don't Tell” (DADT) policy. As such, the applicant qualifies for the requested correction. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Separation notification memorandum with sworn statement * DOD Repeal of DADT and Future Impact on Policy memoranda * Correction of military records following the repeal of DADT 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 1 December 1993. He completed basic combat training and was reassigned to the Defense Language Institute at Presidio of Monterey for completion of advanced training. 3. On 6 June 1994, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 15-3 of AR 635-200 for homosexuality. The specific reasons for the discharge were that the applicant admitted to being homosexual. 4. The applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by an administrative separation board and waived personal appearance before such board, contingent on receiving an honorable characterization of service. 5. On 7 June 1994, his immediate commander initiated separation action against him in accordance with AR 635-200 by reason of homosexuality. He recommended an honorable discharge. His intermediate commander recommended approval of the discharge action with the issuance of an honorable discharge. 6. On 27 June 1994, the separation authority approved the applicant's discharge under the provisions of chapter 15 of AR 635-200 by reason of homosexuality with an honorable characterization of service. Accordingly, the applicant was discharged on 12 July 1994. His DD Form 214 shows he was discharged under the provisions of chapter 15 of AR 635-200 and his service was characterized as "Honorable." His DD Form 214 shows in: * Item 25 (Separation Authority) - AR 635-200, para 15-3b * Item 26 (Separation Code) - JRB * Item 27 (RE Code) - RE-4 * Item 28 (Narrative Reason for Separation) - Homosexual Admission REFERENCES: 1. AR 635-200, chapter 15 at the time, prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces. In all other cases, the type of discharge would reflect the character of the Soldier’s service. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of "JRB" was the correct code for Soldiers separating under paragraph 15-3 for homosexuality. 3. The DADT policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay, or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 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 (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 Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 5. 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. 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. 6. 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. 7. AR 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 included a list of the RA RE codes. RE Codes are numbered 1, 3, and 4. * An RE code of "1" applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * An RE code of "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted * An RE code of 4 applies to Soldiers ineligible for reentry. DISCUSSION AND CONCLUSIONS: 1. The applicant served in the Regular Army from 1 December 1993 to 12 July 1994. During his military service, he admitted to being a homosexual. His chain of command initiated separation action against him. 2. His discharge proceedings, for homosexuality, were conducted in accordance with law and regulations in effect at the time. The honorable characterization of service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time. He was appropriately assigned SPD JRB. 3. The law has since been 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. 4. The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions. In view of the foregoing, his overall record of service merits a characterization of service upgrade to fully honorable by reason of Secretarial Authority (paragraph 5-3 of AR 635-200), with an SPD code of "JFF" and an RE code of "1." 5. Counsel is advised that RE Code 1J is not used or authorized by the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012888 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012888 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2