BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160002119 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 BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160002119 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 issuing the applicant a new DD Form 214, for the period ending 13 September 2000, showing the following entries in: * block 4a (Grade, Rate or Rank): PV2 * block 4b (Pay Grade): E-2 * block 12h (Date of Rank): 1998 10 09 * block 24 (Character of Service): Honorable * block 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * block 26 (Separation Code): JFF * block 27 (Reentry Code): 1 * block 28 (Narrative Reason for Separation): Secretarial Authority _____________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: AR20160002119 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 his under other than honorable conditions discharge be upgrade to an honorable discharge. 2. The applicant states he was guilty of only one thing, being homosexual. He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15 (Discharge for Homosexual Conduct). Now that the policy regarding homosexuals in the military has changed, his discharge should be upgraded to honorable. 3. The applicant provides no additional evidence in support of his request. 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 9 April 1998. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank/grade of private/E-2 (PV2) on 9 October 1998. 3. The applicant's record contains two DA Forms 2823 (Sworn Statement), which show that two unit members reported to their commander that they witnessed the applicant engaged in homosexual acts on 7 May 2000. 4. A DA Form 4856 (Developmental Counseling Form) shows that on 16 May 2000, the applicant was counseled by his immediate commander regarding a Commanders' Inquiry into allegations against him of homosexual acts/conduct. The applicant was also advised he could be administratively separated for homosexual conduct. 5. On 28 June 2000, the applicant's immediate commander notified him that he was initiating action(s) to separate him under the provisions of Army Regulation 635-200, chapter 15, for homosexual conduct. The specific reason for the commander's actions was that the applicant was seen in a homosexual act on 7 May 2000. 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. 6. On the same date, the applicant consulted with legal counsel and acknowledged receipt of the commander's notification. He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he 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 him. He elected not to submit a statement in his own behalf. He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge. 7. The applicant's battalion and brigade commanders recommended approval of the separation action and recommended an honorable characterization of service. 8. On 24 August 2000, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, and directed the applicant be reduced to the lowest enlisted grade and receive an under other than honorable conditions discharge. 9. The applicant was discharged on 13 September 2000. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following entries in: * block 4a (Grade, Rate or Rank): PV1 * block 4b (Pay Grade): E-1 * block 12h (Effective Date of Pay Grade): 2000 08 24 * block 24 (Character of Service): Under Other Than Honorable Conditions * block 25 (Separation Authority (SPD)): Army Regulation 635-200, paragraph 15-3a * block 26 (Separation Code): JRA * block 27 (Reentry (RE) Code): 3 * block 28 (Narrative Reason for Separation): Homosexual (Act) 10. The applicant's record is void of any adverse counseling statements or evidence of disciplinary actions. 11. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-200, 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 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 during the current term of service. In all other cases, the type of discharge would reflect the character of the Soldier's service. 2. 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. 3. 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, the SPD code to JFF, and the RE code to an immediately-eligible-to-reenter category. 4. For the above upgrades to be warranted, the memorandum states that 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 5. 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 was 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 period. 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. 6. 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 DISCUSSION: 1. The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3a, by reason of "homosexual (act)" with an under other than honorable conditions characterization of service after it was determined he had performed such conduct. He was assigned a separation code of "JRA" and an RE code of "3." The separation authority also reduced him to the lowest enlisted grade. 2. The applicant's discharge proceedings were conducted in accordance with law and regulations in effect at the time. The separation authority, SPD code, RE code, and narrative reason for separation shown on his DD Form 214 were appropriate and in accordance with the governing regulations then in effect. 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 their reasons for discharge, SPD codes, RE codes, and service characterizations changed. The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002119 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002119 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2