ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160018388


APPLICANT REQUESTS:  Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 October 1998, to show she was separated with an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 October 2016 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states she was discharged for homosexuality, which she believes is wrong.  Today, a person is allowed to be homosexual and she was able to conduct herself as a Soldier while defending her country.

3.  The applicant enlisted in the Regular Army on 29 November 1990 and reenlisted in the Regular Army on 10 March 1995.

4.  The applicant's Official Military Personnel File is void of any Records of Counseling, Records of Nonjudicial Punishment, or Court-Martial Convictions.

5.  The applicant was afforded a mental health evaluation on 14 July 1998 and was cleared for any administrative action deemed appropriate by his command.

6.  The applicant's immediate commander initiated separation actions against her on or about 23 July 1998, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of homosexual conduct.

7.  After consulting with counsel on 31 July 1998, the applicant acknowledged the proposed separation actions, waived her rights, and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the applicant's discharge on 20 August 1998, under the provisions of Army Regulation 635-200, Chapter 15, and directed that she receive a General Discharge Certificate and that her service be characterized as under honorable conditions.

9.  The applicant was discharged on 7 October 1998.  The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200, Chapter 15, paragraph 15-3b, for homosexual admission.  Her service characterization was under honorable conditions (general).  Her DD Form 214 further shows a separation code of "JRB" and a reentry (RE) code of "4."

10.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was warranted.  Based upon the circumstances which resulted in the discharge and a change in DoD policy relating to those circumstances, the Board found that upgrading the characterization of service of the applicant to Honorable was appropriate.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



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 7 October 1998, showing the following corrections:

* Item 24 (Character of Service) to "Honorable"
* item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3"
* item 26 (Separation Code) to "JFF"
* item 28 (Narrative Reason for Separation) to "Secretarial Authority" 


	 
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.


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 5–3 (Secretarial plenary authority) states:

		(1)  Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.	

		(2)  Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers.  When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned.

3.  The 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, USC, 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.

	a.  The memorandum provides that effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* characterization of the discharge to honorable (if appropriate) 
* separation authority to "Army Regulation 635-200, paragraph 5-3" narrative reason for discharge to "Secretarial Authority" 
* Separation Program Designator (SPD) Code to "JFF"
* the RE code to an immediately-eligible-to-reenter category

	b.  For the above corrections 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.  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.

	d.  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 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.

4.  Based in part on the above memorandum, the specific regulations for homosexual separations were removal and a change of reason for separation was directed if there are no aggravating factors.  If the service member had admitted to homosexual tendencies and there is no evidence that there was any homosexual activity or other aggravating factors, their DD Form 214 was to be corrected at:

* item 24 (Character of Service) to "Honorable"
* item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3"
* item 26 (Separation Code) to "JFF"
* item 27 (Reentry Code) to "1"
* item 28 (Narrative Reason for Separation) to "Secretarial Authority"
5.  It further directed that the DD Form 214 be reissued, in lieu of the DD Form 215 (Correction of the DD Form 214), to avoid a continued record of the homosexual separation.



ABCMR Record of Proceedings (cont)	 AR20160018388


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