BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160004069 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: 28 September 2017 DOCKET NUMBER: AR20160004069 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 the applicant a new DD Form 214 for the period ending 8 February 1991 showing in: * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reentry Code): 1 * item 28 (Narrative Reason for Separation): 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. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160004069 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period covering 8 February 1991 to show a different separation authority, separation code, and narrative reason for separation. 2. The applicant states the Army now allows homosexuals to serve openly, so it is unjust that his DD Form 214 still shows he was discharged for homosexuality. 3. The applicant provides his 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 23 January 1986. 3. A DA Form 3822-R (Report of Mental Status Evaluation), dated 3 January 1991, shows the applicant underwent a mental status evaluation in preparation for his administrative discharge. He reported an attraction to other men and identified himself as homosexual. The medical professional considered him psychiatrically cleared for administrative action as deemed appropriate by his chain of command. 4. The applicant's immediate commander notified him, on 17 January 1991, of his intent to initiate separation action against the applicant, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, by reason of homosexuality. The specific reason for the discharge was the applicant's admission to sexual tendencies and an attraction towards other men. The commander further discussed the applicant's entitlements and rights and recommended an honorable discharge. The applicant acknowledged receipt of the notification that same day. 5. The applicant consulted with legal counsel on 18 January 1991. 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. The applicant elected not to submit a statement in his own behalf and waived an administrative separation board contingent upon receiving an honorable characterization of service. He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 6. The applicant’s immediate commander recommended, on 18 January 1991, that the applicant be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexuality. His intermediate commander further recommended that the applicant receive an honorable discharge. 7. The separation authority approved the applicant's discharge on 23 January 1991, under the provisions of Army Regulation 635-200, chapter 15, for homosexuality, and directed that he receive an honorable discharge. He further directed the applicant not be transferred to the Individual Ready Reserve. 8. The applicant was discharged on 8 February 1991. The DD Form 214 he was issued confirms the following entries: * item 24 (Character of Service): Honorable * item 25 (Separation Authority): Army Regulation 600-200, paragraph 15-3b * item 26 (Separation Code): JRB * item 27 (Reentry Code): 4 * item 28 (Narrative Reason for Separation): Admission of Homosexuality/ Bisexuality 9. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, chapter 15 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time, this regulation prescribed SPD code "JRB" as the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 3. The 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. 4. 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, if warranted * RE code to an immediately-eligible-to-reenter category DISCUSSION: 1. The applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 15, by reason of homosexuality. He was assigned a separation code of "JRB" and an RE code of "4." 2. 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. 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, separation code, and RE code changed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002147 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004069 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2