IN THE CASE OF: BOARD DATE: 10 December 2020 DOCKET NUMBER: AR20200003168 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) of "1" and to show a different separation code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * third-party statement of support * pages 2 and 3 of Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder * VA Form 21-4142a (General Release for Medical Provider Information to the VA) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he is requesting the correction of his DD Form 214 based on the change regarding the "Don't Ask, Don't Tell" policies. 3. The applicant enlisted in the Regular Army on 13 December 1993. 4. On an unspecified date, the applicant's commander informed him that that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, for homosexuality. The commander also informed the applicant that he was recommending an honorable characterization of service. The commander further discussed the applicant's entitlements and rights. 5. On 19 June 1995, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him and the effect of a waiver of his rights. 6. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, and directed an honorable characterization of service. 7. The applicant's DD Form 214 confirms he was discharged on 13 July 1995 under the provisions of Army Regulation 635-200, chapter 15. The DD Form 214 also shows the following entries: * block 24 (Character of Service): Honorable * block 26 (Separation Code): JRB * block 27 (RE Code): 4 * block 28 (Narrative Reason for Separation): Homosexual Admission 8. 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, United States 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 “Don't Ask, Don't Tell" (DADT) or prior policies. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board noted the guidance from the Under Secretary of Defense (Personnel and Readiness) and found no evidence that would prevent executing the relief recommended in that guidance. The Board determined the applicant’s DD Form 214 should be corrected to show he was separated by reason of Secretarial authority (separation code JFF) and assigned RE code 1. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : 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 reissuing his DD Form 214 for the period ending 13 July 1995 to show the following entries: * block 25: Army Regulation 635-200, Chapter 5 * block 26: JFF * block 27: 1 * block 28: Secretarial Authority 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, chapter 15, in effect at the time, governed the separation of Soldiers for homosexual conduct. The regulation states that separation was required when, among other circumstances, the Soldier stated that he or she was homosexual or bisexual. 3. 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, United States 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 Don't Ask, Don't Tell" (DADT) or prior policies. 4. 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 (RE Code 1) 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 * there were no aggravating factors in the record, such as misconduct 6. 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. 7. 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 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. 8. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Table 3-1 provides a list of RE codes. * RE Code "1" applies to Soldiers who have completed their terms of active service who are considered qualified for enlistment if all other criteria are met * the RE Code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable * RE Code "4" applies to Soldiers that are not eligible for further military service //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003168 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1