BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000564 BOARD VOTE: ____x_____ _x______ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000564 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 to show he was discharged on 17 October 1984 by reason of Secretarial authority with an honorable characterization of service, separation program designator “JFF,” and RE code “1.” ___________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: 16 May 2017 DOCKET NUMBER: AR20160000564 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 his military records by showing he was honorably discharged due to Secretarial authority with a reenlistment eligibility (RE) code of “1.” 2. The applicant states his discharge was unjust because it was based on his admission of homosexual activity. There were no aggravating factors. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 November 1977. He was assigned duty in the Federal Republic of Germany on 14 April 1978. 3. The applicant attained the following ranks/pay grades on the dates shown: * private first class, pay grade E-3 on 16 November 1978 * specialist four, pay grade E-4 on 10 August 1979 * specialist five, pay grade E-5 on 1 May 1983 4. On 20 September 1984, the applicant was notified by his immediate commander that discharge action was being initiated against him under the provisions of chapter 15, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for homosexuality. The commander did not state specific actions or admissions as a basis for this action. 5. On 20 September 1984, the applicant acknowledged notification of the proposed discharge action. He waived a personal appearance before a separation board. He also waived consulting counsel and declined to submit a statement in his own behalf. 6. The applicant's commander recommended the applicant’s separation from military service based on homosexuality. The applicant had no record of disciplinary action or courts-martial. 7. On 10 October 1984, the appropriate separation authority approved his discharge for homosexuality and directed the issuance of a DD Form 257A (General Discharge Certificate). On 17 October 1984, he was discharged accordingly. 8. The applicant's DD Form 214 shows he was discharged under the provisions of paragraph 15-3b, Army Regulation 635-200, with an under honorable conditions characterization of service. He was assigned separation program designator (SPD) “JRB” and RE code “4.” The narrative reason for separation was stated as “admission of homosexuality/bisexuality. He completed 6 years, 11 months, and 2 days of active service. 9. On 13 January 1989, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his characterization of service. The ADRB determined the applicant’s characterization was improper and voted to change it to honorable. Accordingly, the applicant was issued a new DD Form 214 reflecting an honorable characterization of service. REFERENCES: 1. Army Regulation 635-200: a. Chapter 15, as then in effect, provided general policies concerning homosexual conduct. Paragraph 15-3a stated that a Soldier would be discharged if he or she had engaged in, attempted to engage in, or solicited another to engage in a homosexual act. b. Paragraph 3-7a(1) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b(1) stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. 2. 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 the don’t ask, don’t tell (DADT) or prior policies. 3. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "Secretarial authority" with an SPD code of “JFF” * characterization of service to “honorable” * RE code to an immediately-eligible-to-reenter category (e.g., RE code "1") 4. 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 5. 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 be normally considered as an indication of no 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 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 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. DISCUSSION: 1. The applicant contends his military records should be corrected by showing he was honorably discharged under Secretarial authority with an RE code of "1." 2. The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. 3. Nevertheless, 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 characterization of service changed. 4. The available evidence fails to show any misconduct on the applicant’s part that would be a barrier to a recommendation to grant relief in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000564 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000564 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2