BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160002681 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: 29 August 2017 DOCKET NUMBER: AR20160002681 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 her DD Form 214 for the period ending 26 January 2001 and issuing her a new DD Form 214 showing she was discharged with an honorable characterization of service by reason of Secretarial Authority (Paragraph 5-3, AR 635-200) with a separation 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. BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160002681 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 the narrative reason for separation (homosexual admission) be removed from her DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states she wants this reason for separation removed and replaced with a general reason, such as military administrative separation. She wants this corrected due to repeal of the Don't Ask/Don't Tell (DADT). 3. The applicant provides her DD Form 214. 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's records show she enlisted in the Regular Army (RA) on 10 June 1999 and she held military occupational specialty 92A (automated Logistical Specialist). She was assigned to Fort Campbell, KY. 3. On 17 January 2001, 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 (Personnel Separations) for homosexuality. The specific reason for the discharge was the applicant's propensity to engage in sexual activity with members of the same sex. The immediate commander recommended an honorable discharge. 4. On 18 January 2001, the applicant acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel. She was advised of the bases for the contemplated separation action for homosexuality, 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 further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her. 5. Subsequent to this acknowledgement, her immediate commander initiated separation action against her in accordance with AR 635-200 by reason of homosexuality. Her intermediate commander recommended approval. 6. The separation authority approved the applicant's discharge under the provisions of chapter 15 of AR 635-200 by reason of homosexuality with the issuance of an honorable discharge. Accordingly, she was discharged on 26 January 2001. Her DD Form 214 shows she completed 1 year, 7 months, and 17 days of creditable active service. It also shows in: * Item 25 (Separation Authority), AR 635-200, Para 15-3B * Item 26 (Separation Code), JRB * Item 27 (Reentry (RE) Code), RE-4 * Item 28 (Narrative Reason for Separation), Homosexual Admission REFERENCE: 1. Army Regulation 635-200, chapter 15 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. 2. 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. 3. 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 4. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) there were no aggravating factors in the record, such as misconduct. 5. 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. 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. 6. AR 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve. Table 3-1 included a list of the RA RE codes. RE codes are numbered 1, 3, and 4. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted * RE-4 applies to Soldiers ineligible for reentry 7. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time, this regulation prescribed SPD code JRB as the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason. DISCUSSION: 1. The applicant served in the Regular Army from 10 June 1999 to 26 January 2001. During her military service, her commander determines that she displayed a propensity to engage in homosexual activities with members of the same sex. Accordingly, her commander initiated separation action against her in accordance with paragraph 15-3 of AR 635-200. 2. Her discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. She was appropriately assigned a separation code of JRB and RE-4. 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 reason for discharge and characterizations of service changed. 4. The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions. In accordance with DOD guidance, her overall record contains no evidence that would present a barrier to correcting her record to show she was separated by reason of Secretarial Authority (paragraph 5-3 of AR 635-200), with an SPD code of "JFF" and an RE code of "1." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002681 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002681 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2