IN THE CASE OF BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160003274 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: 28 November 2017 DOCKET NUMBER: AR20160003274 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 24 July 2001, showing the following entries in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code) – JFF * item 27 (Reentry Code) – 1 * item 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. IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160003274 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable reentry (RE) code and narrative reason for separation. 2. The applicant states the Don't Ask, Don't Tell (DADT) policy was repealed by Congress on 20 September 2011. 3. The applicant provides a copy of his 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 enlisted in the Regular Army on 4 February 2000. After completing his initial entry training, he was awarded military occupational specialty 92A (Automated Logistical Specialist). 3. The applicant submitted a memorandum to his commanding officer on 12 July 2001, wherein he requested separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15 (Discharge for Homosexual Conduct). The applicant stated after struggling morally, he discovered he was bisexual and his natural propensity was to engage in sexual activity with members of the same sex. 4. A DA Form 3822-R (Report of Mental Evaluation), dated 12 July 2001, shows the applicant was evaluated and determined to have normal behavior and was fully oriented and alert, with clear thinking process and normal thought content. He had the mental capacity to understand and participate in any chapter proceedings and was psychiatrically cleared for any administrative action deemed by the command. 5. On the same date, the applicant's immediate commander notified him of his intent to initiate separation actions under the provisions of Army Regulation 635-200, chapter 15, based on homosexual conduct. The specific reason for the discharge was the applicant's propensity to engage in sexual activity with members of the same sex. He further discussed the applicant's entitlements and rights and his recommendation that the applicant receive an honorable discharge. 6. On the same day, the applicant acknowledged receipt of the commander's notification. He further acknowledged: * he had been afforded the opportunity to consult with counsel * he would not submit statements in his own behalf * he may encounter substantial prejudice in civilian life * he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge 7. Subsequent to this acknowledgement, the applicant’s immediate commander recommended that he be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexual conduct. His commander recommended approval of the action with an honorable discharge. 8. The applicant was honorably discharged on 24 July 2001. His DD Form 214 shows he completed 1 year, 5 months, and 21 days of net active service and contains the following entries in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 15-3b * item 26 (Separation Code) – JRB * item 27 (Reentry 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. At the time, chapter 15 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. 2. 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. 3. An 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 DADT or prior policies. 4. This 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 code to "JFF" * character of service to honorable, if warranted * RE code to an immediately-eligible-to-reenter category DISCUSSION: 1. The applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 15, by reason of homosexual conduct (admission). He was assigned a separation code of "JRB" and an RE code of "4." His discharge proceedings were conducted in accordance with law and regulations in effect at the time and his rights were protected throughout the discharge process. 2. 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, separation code, and RE code changed. 3. The evidence supports correction of his record under the policy and guidance of the Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, which is referenced above. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003274 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003274 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2