IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013560 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 IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013560 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 20 April 2000 DD Form 214 and issuing him a new DD Form 214 to show: * Item 25 – "Army Regulation 635-200, Paragraph 5-3" * Item 26 – the SPD code of "JFF" * Item 27 – an RE code of "1" * Item 28 – "Secretarial Authority" 2. The Board further determined 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 correcting his DD Form 214 to show he completed the Air Assault Course. __________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. IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013560 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, separation program designator (SPD) code, reentry eligibility (RE) code, and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected and to add completion of Air Assault training. 2. The applicant states his DD Form 214 is inaccurate and he requests these changes. 3. The applicant provides no documentary evidence in support of his application. 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 20 January 1999. He held military occupational specialty 11B ((Infantryman). 3. In a DA Form 2823 (Sworn Statement), dated 31 March 2000, the applicant stated, "I am involved and have been involved in the past with both man and women." 4. The company commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15 (Discharge for Homosexual Conduct). The reason for his proposed action was the applicant's propensity to engage in sexual activity with members of the same sex. The commander also informed the applicant of his rights and of the administrative process available to him. * have his case considered by a board of officers * appear in person before a board of officers * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers 5. The applicant acknowledged receipt of the action. The applicant waived legal counsel and was advised of the basis for the contemplated separation action, the procedures and rights that were available to him, and the type of discharge he could receive. He elected to submit a statement on his own behalf in which he stated: a. He was gay and had a natural propensity to engage in sexual activity with members of the same sex. He expressed his desire to fulfill his enlistment commitment, but he could not do so at the expense of being required to lie to his friends and commanders. b. Given his statement of sexual orientation, he respectfully requested discharge from the Army in accordance with Army Regulation 635-200, chapter 15 and that the matter be handled in a confidential and timely manner. 6. The unit commander initiated action for the applicant's discharge under the provisions of AR 635-200, chapter 15 and recommended he receive an honorable discharge. 7. The applicant’s chain of command recommended approval of the applicant's separation with an honorable discharge. 8. On 13 April 2000 the separation authority approved the applicant's discharge and directed his service be characterized as honorable. 9. His DD Form 214 shows he was honorably discharged on 20 April 2000, under the provisions of Army Regulation 635-200, paragraph 15-3b, based on homosexual admission. It also shows in: * item 26 (Separation Code): "JRB" (Homosexual Conduct (Admission)) * item 27 (Reentry Code): "4" (nonwaivable disqualification; ineligible for reenlistment) * item 28 (Narrative Reason for Separation): Homosexual admission 10. There is no indication the applicant requested any changes to his discharge from the Army Discharge Review Board. 11. There is no available evidence showing the applicant completed the Air Assault Course. REFERENCES: 1. The "Don't Ask, Don't Tell (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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15 prescribed general policies concerning homosexual conduct, including statutory provisions, pertinent definitions, and commander guidelines for fact-finding inquiries. a. Paragraph 15-2 (Discharge policy) provides that homosexual conduct is grounds for separation from the Army under the criteria set forth in paragraph 15-3. This includes pre-service, prior service, or current service homosexual conduct. The term homosexual conduct includes homosexual acts, statement(s) that demonstrate a propensity or intent to engage in homosexual acts, or homosexual marriage or attempted marriage. A statement that demonstrates a propensity or intent to engage in homosexual acts was grounds for discharge not because it reflects the Soldier's sexual orientation, but because the statement indicates a likelihood that the Soldier engages in, or will engage in, homosexual acts. b. Paragraph 15-3 (Criteria for discharge) provided that, except as indicated, a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority. It shows, in pertinent part, in subparagraph b, the Soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Solder has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. 3. The Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., Army Regulation 635-200, paragraph 5-3) and the Separation Program Designator (SPD) code to "JFF" (Secretarial Authority). It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 is a summary of a Soldier’s most recent period of continuous active service. It provides a brief, clear cut record of active service at the time of release from active duty, retirement, or discharge. For item 14 (Military Education), list in-service training courses; title, number of weeks, and year successfully completed during the period of service covered by the DD Form 214. DISCUSSION: 1. The applicant served on active duty from 20 January 1999 to 20 April 2000. a. During his military service the applicant admitted to having a homosexual orientation. b. There is no evidence of aggravating factors in the record, such as misconduct. c. His chain of command initiated separation action against him and he was issued an honorable discharge. 2. The applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error. 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/bisexuality should now have the authority and reason for discharge changed. The SPD and RE codes should also normally be changed to an immediately-eligible-to-reenter category. 4. Based on the evidence of record, the applicant's DD Form 214 should be corrected to show he was honorably discharged with "Secretarial Authority" as the narrative reason and authority for separation with an SPD code of "JFF" (Secretarial Authority) and an RE code of "1" (Eligible for Enlistment/Reenlistment). 5. There is no available evidence showing he completed the Air Assault Course. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013560 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013560 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2