IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018437 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 IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018437 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 voiding his 12 April 1990 DD Form 214 and issuing him a new DD Form 214 to show he was honorably discharged by reason of "Secretarial Authority" with a Separation Program Designator code of "JFF" and a reentry code of "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. IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018437 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 the separation authority, narrative reason for separation, separation program designator (SPD) code, reentry (RE) code, and characterization of service pertaining to his discharge. 2. The applicant states that he was discharged with a general, under honorable conditions discharge due to homosexual tendencies. He states that he believes this is an injustice because that would not be the case in today's military. 3. The applicant provides a copy of his DD Form 214 (Report of Separation 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 8 June 1973 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 94B (Food Service Specialist) 3. He was assigned to Fort Huachuca, AZ, on 23 October 1973. He was advanced to private first class (PFC)/pay grade E-3 on 7 June 1974. 4. He received nonjudicial punishment (NJP) for, on 13 August 1974, wrongfully communicating a threat to kill a noncommissioned officer when he (the applicant) got out of the hospital. His punishment was reduction to the grade of private (E-2), restriction for 5 days, and extra duty for 7 days. 5. He was advanced to PFC (E-3) on 18 December 1974. 6. He was assigned overseas to Korea on 5 February 1975. 7. On 25 March 1975, the applicant's company commander notified him of his intent to initiate separation action against him in accordance with (IAW) Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5b, for unsuitability based on homosexuality (tendencies, desires or interest, but no homosexual acts while in current term of military service). a. He was advised of his rights and the separation procedures involved. b. The applicant acknowledged receipt of the commander's notification. 8. The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the procedures and rights that were available to him, and the type of discharge he could receive. He: * waived consideration of his case by a board of officers * waived personal appearance before a board of officers * elected not to submit statements in his own behalf * waived representation by counsel * acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him 9. The applicant underwent a medical examination and a mental status evaluation. He met the retention standards, was found qualified for separation, and was cleared for administrative separation IAW AR 635-200, chapter 13. 10. The intermediate commander recommended approval of the separation action. 11. On 15 April 1975, the separation authority approved the applicant's discharge under the provisions of (UP) AR 635-200, chapter 13, with the issuance of a General Discharge Certificate. 12. The DD Form 214 the applicant was issued shows he was discharged on 21 April 1975, UP AR 635-200, paragraph 13-5b(5); SPD code "JML" (unsuitability – homosexual tendencies); and RE code "3" with a General Discharge Certificate. He had completed 1 year, 10 months, and 14 days of active service. 13. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. A Soldier separated because of unsuitability was furnished either an honorable or general discharge certificate, as warranted by their military record. b. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 2. The "Don't Ask, Don't Tell" (DADT) 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. 3. Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., AR 635-200, paragraph 5-3) and the SPD code to "JFF" (Secretarial Authority). It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 4. The memorandum also recognized that although Boards for Correction of Military/Navy Records 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 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: 1. The applicant served on active duty from 8 June 1973 to 21 April 1975. During his military service he acknowledged having homosexual tendencies and a desire for homosexual contact. Accordingly, his chain of command initiated separation action against him and he was issued a general discharge. 2. The applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error. 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 the authority and reason for discharge changed, and the RE code should normally be changed to an immediately-eligible-to-reenter category (i.e., RE code "1"). In addition, requests to re-characterize the discharge to honorable should normally be granted if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 4. The applicant's records reveal one incident of misconduct (communicating a threat) for which he received NJP. There is no evidence indicating administrative separation proceedings were initiated as a result of this misconduct. While the NJP was identified during separation processing, the evidence does not show to what degree it influenced the separation authority's decision to issue the applicant a General Discharge Certificate. 5. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018437 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018437 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2