IN THE CASE OF:

		BOARD DATE:  5 June 2018

		DOCKET NUMBER:  AR20160008578


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

: 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:  5 June 2018

		DOCKET NUMBER:  AR20160008578


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 her under other than honorable conditions discharge 
be upgraded to an honorable discharge.

2.  The applicant states, in effect:

     a.  She was young when she entered the Army and got involved with an older 
woman which was a life lesson.  She eventually went to her command to admit 
her relationship with the woman.

     b.  A lot has changed since that day.  She became a productive member of 
society, got married, helped raise children, and worked hard to make a good life 
for herself.  Her discharge has always hung over her head.  It was a short-lived 
situation and if she could do it over again, she would have waited until she was 
no longer in the Army.

     c.  She has never considered herself to be homosexual.  It was a one-time 
thing and does not believe she should continue to be punished.  Prior to her 
admission, she received non-judicial punishment for failing to show up for a 
detail, this was her only infraction.  Since leaving the military she has been an 
upstanding citizen and lived an exemplary life.  




3.  The applicant provides:

*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)
*	DA Form20 (Enlisted Qualification Record)
*	self-authored statement 
*	DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ)
*	Certificate of Training
*	DD Form 4 (Enlistment Contact – Armed Forces of the United States)

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 United States Army on 14 October 1970.

3.  On 23 June 1971, she accepted non-judicial punishment for failing to obey a 
lawful order and being absent without authority on or about 7 June 1971 and 
failing to go to her appointed place of duty on or about 8 June 1971.

4.  A DA Form 20 (Enlisted Qualification Record) shows she was promoted to 
private first class on 1 November 1971.

5.  Her complete discharge packet is not available for review; however, her 
records contain a DA Form 268 (Report of Suspension of Favorable Personnel 
Actions), dated 19 November 1971, which shows she was pending investigation 
under Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness 
and Unsuitability).

6.  On 1 December 1971, the separation authority approved her discharge for 
unfitness under the provisions of Army Regulation 635-212 (Discharge Unfitness 
and Unsuitability) with a separation program number (SPN) (currently known as 
separation program designator (SPD)) of 257 (unfitness – homosexual acts).  
She was to be reduced to the lowest enlisted grade and be issued an 
Undesirable Discharge Certificate.  

7.  On 23 December 1971, she was reduced from PFC to private (PV1).   
 
8.  On 24 February 1972, she was discharged under the provisions of Army 
Regulation 635-212 with SPN "257" and a character of service of under other 
than honorable conditions.  She completed 1 year, 4 months, and 11 days of total 
active service.  

9.  There is no evidence to show she applied to the Army Discharge Review 
Board for an upgrade of her discharge within that board's 15-year statute of 
limitations.

REFERENCES:

1.  Army Regulation 635-212, paragraph 6, in effect at the time, set forth the 
basic authority for the separation of personnel for unsuitability.  This regulation 
prescribed the authority, criteria, and procedures for the disposition of military 
personnel who were homosexuals and military personnel who engaged in 
homosexual acts, or were alleged to have engaged in such acts.  The regulation 
states, in pertinent part, that Class III homosexuals were personnel who 
exhibited, professed, or admitted homosexual tendencies, but who had not 
committed any provable acts or offenses.  Class II consists of those cases in 
which personnel have engaged in one or more homosexual acts not within the 
purview of Class I (homosexual act accomplished by assault or coercion; 
unwilling participant; cooperation or consent was obtained by fraud; or 
homosexual act with child under the age of 16 years) during military service.  
Enlisted members whose cases were processed under this regulation in the 
Class II category normally would be furnished an undesirable discharge 
certificate.

2.  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, United States 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.  The memorandum states that, effective 20 September 2011: 

   a. 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

   b.   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

   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 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 by itself be considered to constitute an 
error or injustice that would invalidate an otherwise properly-taken discharge 
action.

DISCUSSION:

1.  The evidence of record shows the applicant was discharged on                     
24 February 1972 under the provisions of Army Regulation 635-212, by reason of 
homosexuality with a UOTHC character of service. 

2.  Her complete discharge packet is not available for review; however, she 
admits to being involved with a woman during her service in the military.  Based 
on her own statements, her discharge for homosexuality complied with the laws 
and regulations in effect at the time.  The characterization of her service was 
commensurate with the reason for her discharge in accordance with the 
governing regulations in effect at the time.

3.  Nevertheless, the law has since been changed, and current standards are 
now 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.  Aside from punishment for minor offenses, the applicant's record is void of 
any adverse counseling statements or other disciplinary actions.  In view of the 
foregoing and in accordance with DOD guidance, her overall record contains no 
evidence that would present a barrier to correcting her record to show she was 
honorably discharged by reason of Secretarial Authority (AR 635-200, paragraph 
5-3) with an SPD code of "JFF" and an RE code of "1.




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

	a.  Issuing her a new DD Form 214 (Certificate of Release or Discharge from 
Active Duty) for the period ending 24 February 1972, which shows:

*	she was discharged in the rank/grade of private first class/E-3 and her 
date of rank was 1 November 1971
*	she was discharged under the authority of "Army Regulation 635-200, 
paragraph 5-3," by reason of "Secretarial Authority"
*	her service was characterized as "Honorable"
*	she was assigned separation code "JFF" and reentry code "1" 

	b.  Issuing her a DD Form 256A (Honorable Discharge Certificate) for her 
period of service from 14 October 1970 to 24 February 1972.

												 
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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20160008578


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


ABCMR Record of Proceedings (cont)	AR20160008578


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


Enclosure 2