IN THE CASE OF: BOARD DATE: 24 January 2012 DOCKET NUMBER: AR20110021662 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: * Issuance of an antedated enlistment contract in the U.S. Army Reserve (USAR) * To be able to maintain her rank/grade of specialist (SPC)/E-4 in the USAR * Not have any money recouped due to irregularities in her accession into the USAR * Her chapter 15 (Homosexual Conduct - Admission) separation be erased from her records 2. The applicant states: * According to her unit administrator, the systems she was entered into were not communicating; one system shows she was discharged from the Regular Army while another shows she was placed into the Individual Ready Reserve (IRR) * It is unclear why she was placed into the IRR after her discharge from the Army for homosexual admission * It is equally unclear how she was allowed to be brought back from the IRR into a troop program unit (TPU) without an enlistment contract * Nevertheless, none of these errors were her fault; she has now completed 3 years of service, 2 years of which were in the IRR and one year in a TPU * She would like permission to keep her rank/grade of SPC/E-4 * She would also like to keep the money she earned as a result of her service * She would like the chapter 15 separation erased so she may continue with her military career 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Statement from her commander * Enlisted Service Data printouts * Orders C-10-015237 (transfer from IRR to TPU) * Orders 115-1306 (discharge orders from the Regular Army) * Self-authored statement * DA Form 4187 (Personnel Action) * Multiple orders to unit training * Multiple Leave and Earnings Statements CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 13 March 2008. She was assigned to the 796th Military Police Battalion, Fort Leonard Wood, MO, for completion of training. 2. On 31 March 2008, she submitted a sworn statement indicating that she was bisexual. She notified her chain of command that she was bisexual and she intended to continue a bisexual lifestyle despite it being against Army policies at the time. 3. On 17 April 2008, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15 of Army Regulation (AR) 635-200, for homosexuality admission. 4. On 17 April 2008, she acknowledged receipt of the commander's intent to separate her. She subsequently consulted with counsel and was advised of the basis for the contemplated separation action, the type of discharge she 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 her. She voluntarily waived consideration of her case by an administrative separation board, waived personal appearance before a separation board, and elected not to submit a statement on her own behalf. 5. Subsequent to her acknowledgement and consult with counsel, her immediate commander initiated separation action against her in accordance with AR 635-200 by reason of homosexuality. He and her intermediate commander recommended approval. 6. On 18 April 2008, consistent with the chain of command's recommendations and legal review for sufficiency, the separation authority approved the applicant’s discharge under the provisions of chapter 15 of Army Regulation 635-200 for homosexuality with an uncharacterized entry level separation. The applicant was accordingly discharged on 25 April 2008. 7. Her DD Form 214 shows she was discharged in the rank/grade of private/E-1 on 25 April 2008 under the provisions of chapter 15 of AR 635-200 by reason of admission of homosexuality with an uncharacterized character of service. She completed 1 month and 13 days of creditable active service. Her DD Form 214 also shows the following entries: * Item 9 (Command to Which Transferred) - N/A (Not applicable) * Item 25 (Separation Authority) - AR 635-200, Para 15-3B * Item 26 (Separation Code) - "JRB" * item 27 (Reentry Code) - "4" 8. It appears that on the date after her discharge from the Regular Army, she was transferred to the USAR Control Group (Annual Training (AT)). 9. On 7 October 2010, she submitted a DA Form 4187 through a USAR recruiter requesting unit assignment to the 971st Medical Company, Ogden, UT, in duty military occupational specialty (MOS) 92A (Automated Logistics Specialist). Her rank is shown as a private/E-2. 10. She submitted various Enlisted Service Data printouts, dated October 2010, that listed her rank as an E-2. The printouts also listed the date 22 March 2015 as the date her service obligation expires. 11. On 25 October 2010, the U.S. Army Human Resources Command, Fort Knox, KY, published Orders C-10-015237 releasing her from the USAR Control Group (AT) and assigning her to the 971st Medical Company, Ogden, UT, effective 8 October 2010. The orders listed her rank as PV2/E-2. 12. Her records show she was an active participant in 2010 as follows: 6, 7, 10, 24, and 30 November 2010, and 4 and 5 December 2010. 13. She was transferred to the 308th Medical Company, St. George, UT, on 7 January 2011 as a SPC/E-4. 14. In March 2011, and in subsequent months, she began receiving orders from the 88th Regional Support Command, Fort McCoy, WI, ordering her to battle assemblies/annual training. These orders listed her rank as an E-4. The corresponding Leave and Earnings Statements, however, indicate she was receiving pay as an E-2. 15. On 14 October 2011, her unit received an email from the USAR Command, Fort Bragg, NC, highlighting the various issues related to her accession into the USAR and recommending the issuance of an antedated enlistment contract. 16. An email, dated 28 December 2011, from the Defense Finance and Accounting Service, Indianapolis, IN, indicates the applicant had a purged debt of $36.66 which was well under the threshold for collection. 17. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, chapter 15 provided that a Soldier will be separated if the member has stated that he or she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual. 18. Chapter 3 of AR 635-200 describes the different types of characterization of service. It states 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 entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable 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 or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. 19. AR 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the Army and they are qualified for enlistment if all other criteria are met * RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification 20. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty. The "JRB" SPD code is the correct code for Soldiers separating under chapter 15, Army Regulation 635-200, Homosexual (Admission). 21. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. The cross reference table shows the SPD code and a corresponding RE code. At the time of her discharge, the SPD code of "JRB" had a corresponding RE code of "4." 22. The "Don't Ask, Don't Tell" 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. 23. 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 DADT or prior policies. 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 24. 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 25. 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. 26. 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 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. 27. AR 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program. Paragraph 11-8 of this regulation provides for the dates of reenlistments and Reserve Component enlistments on the DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States). It states the effective date of a Reserve Component enlistment is the day after discharge from the Regular Army. The date on the enlistment or transfer packet will be the date the action is consummated, e.g. the date the oath is administered. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows that while attending basic combat training, the applicant admitted to bisexuality. Accordingly, her commander initiated separation action against her. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, her uncharacterized description of service accurately reflects her overall record of service. The entry-level separation is given regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not "derogatory." An uncharacterized character of service 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. 2. The applicant’s SPD and RE codes were assigned based on the fact that she was separated under the provisions of chapter 15 of AR 635-200 for homosexuality. Absent her admission, there was no fundamental reason to process her for discharge. The underlying reason for her discharge was her admission to homosexuality. The only valid narrative reason for separation permitted under that paragraph was "Homosexual - Admission" and the appropriate SPD and RE codes associated with this discharge were "JRB" and RE-4 which are correctly shown on her DD Form 214. 3. However, the law has recently been changed. Since there were no aggravating factors that led to her discharge for homosexuality admission, her records should be corrected by changing the narrative reason for her discharge from the Regular Army to "Secretarial Authority" with an SPD Code of "JFF" and an RE Code of "1" and she should be reissued a DD Form 214 that reflects these changes. 4. A discharge from the Regular Army entails complete severance from all military status gained by enlistment. Despite the applicant’s discharge and for unknown reasons, she remained on the Army books as a member of the IRR. So, when the recruiter contacted her, the recruiter offered her an assignment from the IRR to a TPU without an enlistment contract because she had been erroneously placed in the IRR. Despite the lack of an enlistment contract, she was transferred from the IRR to a TPU and continued to drill throughout 2010 and 2011 until the error was discovered. 5. That error has caused the applicant an injustice; therefore, it would be equitable to issue her an antedated DD Form 4 to effect her enlistment in the USAR, effective 26 April 2008 for a period equal to her remaining service obligation and, if otherwise fully qualified, she should be issued appropriate promotion orders to E-3 and E-4 by her unit to be effective on the dates she met the minimum promotion eligibility to each rank/grade. BOARD VOTE: __X___ _ __X_____ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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: * Voiding her existing DD Form 214 * Issuing her a revised DD Form 214 that reflects in: * Item 26 - JFF * Item 27 - RE-1 * Item 28 - Secretarial Authority * Removing from her records any and all documents related to her chapter 15 discharge * Issuing her an antedated DD Form 4, dated 26 April 2008 for a period of service equal to her remaining service obligation and allowing her to keep any pay and allowances she has already been paid for this service * Reviewing her records and, if otherwise fully qualified, issuing appropriate promotion orders to E-3 and E-4 to be effective on the dates she met the minimum promotion eligibility to each rank/grade and paid all appropriate back pay and allowances _______ _ 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) AR20110021662 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021662 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1