BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004671 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: 7 November 2017 DOCKET NUMBER: AR20160004671 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 the previously-issued DD Form 214 and issuing him a new DD Form 214 showing he was honorably discharged by reason of Secretarial Authority with an SPD code of JFF and a reentry eligibility code of 1 effective 28 January 1997. _____________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: 7 November 2017 DOCKET NUMBER: AR20160004671 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) for the period ending 28 January 1997 to show a different separation code, reentry eligibility (RE) code, and narrative reason for separation. 2. The applicant states: a. He wants his narrative reason for separation changed from homosexual admission to another reason that does not reference sexual orientation. He also wants his separation code and RE code changed accordingly. The current entries have caused discrimination and hardship obtaining employment. b. "Don't Ask, Don't Tell (DADT)" was repealed on 20 September 2011, thus allowing an individual's sexual orientation to be known without penalty or discharge. 3. The applicant provides a copy of his DD Form 214 for the period ending 28 January 1997. 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. Having prior active service in the U.S. Air Force, the applicant enlisted in the Regular Army on 11 October 1995 for a period of 3 years. 3. In an undated, hand-written statement to his company commander, the applicant admitted he engaged in homosexual acts and requested discharge from the U.S. Army. 4. On or about 27 November 1996, discharge proceedings were initiated against him for homosexuality under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15. 5. On 28 January 1997, the separation authority approved the recommendation for separation for homosexual admission under the provisions of Army Regulation 635-200, chapter 15, and directed the issuance of an Honorable Discharge Certificate. 6. On 28 January 1997, he was honorably discharged by reason of homosexual admission. He completed 1 year, 3 months, and 18 days of total active service during this period. 6. His DD Form 214 for the period ending 28 January 1997 shows in: * 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. Chapter 15, in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. a. 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, during the current term of service, there were 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 in circumstances that violate customary military superior-subordinate relationships * openly in public view * for compensation * aboard a military vessel or aircraft * 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 b. In all other cases, the type of discharge would reflect the character of the Soldier's service. 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 DADT or prior policies. a. Effective 20 September 2011, Service DRBs should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * SPD code to "JFF" * characterization of the discharge to "HONORABLE" * RE code to an immediately-eligible-to-reenter category b. For the above upgrades to be warranted, 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 c. 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. d. 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 narrative 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" //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004671 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004671 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2