SAMR-RB 28 August 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160000100 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 08 August 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing the narrative reason for his separation as "Secretarial Authority" with the appropriate SPD code. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 28 December 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000100 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000100 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 voiding the previously issued DD Form 214 and issuing him a new DD Form 214 showing he was discharged under honorable conditions (general) by reason of Secretarial Authority with a separation program designator code of JFF and a reentry eligibility code of 1 effective 6 April 1995. 2. The Board further determined 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 showing his character of service as 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. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000100 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 the character of service and narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he doesn't deserve a dishonorable discharge for having homosexual tendencies. He doesn't even feel he served in the military because his time was less than 2 months. He was called out for this act by a person getting out for wanting to kill himself. He admitted to this act only because he was afraid of what might happen if the news got back to the others in his platoon. He is in the process of getting a job and he is tired of having this come up when it has no relevance. 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 15 February 1995 for a period of 3 years and 18 months. 3. In March 1995 in a sworn statement, the applicant admitted he was homosexual. 4. Discharge proceedings were initiated for homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15. On 4 April 1995, the separation authority approved the recommendation for separation and directed the issuance of an entry-level separation with uncharacterized service. 5. On 6 April 1995, he was discharged for admission of homosexuality. He completed 1 month and 22 days of total active service. 6. His DD Form 214 shows in: * item 24 (Character of Service) – Uncharacterized * item 25 (Separation Authority) – Army Regulation 635-200, Paragraph  15-3b * item 26 (Separation Code) – JRB * item 27 (Reenlistment Code) – 4 * item 28 (Narrative Reason for Separation) – Homosexual Admission REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 15, in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other soldiers of the Armed Forces. In all other cases, the type of discharge would reflect the character of the Soldier's service. b. 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. c. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JRB, in effect at the time, applied to Soldiers who were separated by reason of homosexuality or bisexuality. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE-1 applies to individuals completing an initial term of active service who were fully qualified when last separated. RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. RE-4 applies to persons separated from last period of service with a non-waivable disqualification 4. 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 (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. 5. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * separation program designator (SPD) code to "JFF" * characterization of the discharge to "HONORABLE" * reentry eligibility (RE) code to an immediately-eligible-to-reenter category 6. 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 7. 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. 8. 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 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 be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action. DISCUSSION: 1. The applicant's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. 2. Nevertheless, the law has since been changed. Soldiers separated solely for homosexuality should now have their reasons for discharge and RE codes changed. 3. There were no aggravating factors in the applicant's records indicating misconduct. 4. Under current DOD policy, his DD Form 214 should be corrected to show his: * narrative reason for separation as "SECRETARIAL AUTHORITY" * SPD code as "JFF" * RE code as "RE-1" 5. The evidence of record does not support the applicant's contention that he was issued a dishonorable discharge. His DD Form 214 shows his service as uncharacterized. 6. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status. 7. Uncharacterized service is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not served on active duty long enough for his or her service characterization to be rated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000100 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000100 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2