IN THE CASE OF: BOARD DATE: 3 November 2011 DOCKET NUMBER: AR20110010001 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 change of his characterization of service from uncharacterized to honorable. 2. The applicant states he did not commit any misconduct and served honorably. 3. The applicant provides no additional evidence. 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 July 1986. 3. He was discharged on 30 July 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 15-3b, based on his admission of homosexuality. He was credited with completion of one month of active duty service and was issued a character of service of "uncharacterized," a separation code of "JRB," and a reenlistment (RE) code of 4. 4. There is no indication the applicant applied to the Army Discharge Review Board for a change of the characterization of his service. 5. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Chapter 3 of this regulation describes the different types of characterization of service. It provides that an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty service. 6. 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. 7. 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 8. 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 9. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that the characterization of his service should be changed from uncharacterized to honorable has been carefully considered. 2. The evidence of record confirms his separation action was initiated while he was in entry level status. As a result, his service was appropriately described as "uncharacterized." An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. There are no such circumstances present in the applicant's record. As a result, a change to the characterization of his service to honorable is not warranted. 3. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request for an honorable discharge. 4. As a related issue, the law has since been changed, and current standards as to the reason for discharge 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 RE code changed. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X____ ___X___ ___X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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 issuing him a new DD Form 214 to show he was discharged by reason of Secretarial Authority (SPD JFF), with an RE code of 1, on 30 July 1986. 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 changing the character of his service to honorable. ___________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. ABCMR Record of Proceedings (cont) AR20110010001 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110010001 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1