ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    26 April 2019

	DOCKET NUMBER:  AR20170000992


APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to 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)
FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10,          U.S. Code, 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 makes no statement in support of his request. 

3.  The applicant enlisted into the Regular Army on 23 October 1986

4.   The applicant underwent mental status evaluations on 25 March and 25 April 1988.  The corresponding DA Forms 3822-R (Report of Mental Status Evaluation) show the applicant identified himself as homosexual.  The medical professional considered him psychiatrically cleared for administrative action as deemed appropriate by his chain of command. 

5.  The applicant's immediate commander notified him, on 11 April 1988, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, by reason of homosexuality.  The specific reason for the discharge was the applicant's engagement in homosexual acts with at least three different men.   The commander further discussed the applicant's entitlements and rights and recommended an under honorable conditions (general) discharge.  The applicant acknowledged receipt of the notification that same day. 

6.  The applicant consulted with legal counsel on 14 April 1988.  He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he 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 him.  The applicant elected not to submit a statement in his own behalf and waived his right to appear before an administrative separation board contingent upon receiving a general discharge characterization of service.  There is nothing in his record to reflect that he appeared before a board, in effect the evidence is not available for review.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.   

7.  The applicant’s immediate commander recommended on or about 19 April 1988 that the applicant be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexuality.  His intermediate commander further recommended that the applicant receive a general discharge.

8.   The separation authority approved the applicant's discharge on 5 May 1988, under the provisions of Army Regulation 635-200, chapter 15, for homosexuality, and directed that he receive a general discharge.  

9.   The applicant was discharged on 20 May 1988.  The DD Form 214 he was issued confirms the following entries:

* item 24 (Character of Service):  Under Honorable Conditions 
* item 25 (Separation Authority):  Army Regulation 635-200, paragraph 15-3
* item 26 (Separation Code):  JRA
* item 27 (Reentry Code):  RE-4
* item 28 (Narrative Reason for Separation):  Engaged, Attempted to engage in, or solicited another to engage in homosexual act(s)

10.  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 separation codes to be entered on the DD Form 214.

11.  Army Regulation 635-200 is the governing Army regulation for administrative separations. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Based upon the discharge of the applicant being executed solely as a result of the homosexual conduct of the applicant and the change in DoD policy relating to homosexual conduct, the Board concluded that changing he characterization of service 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 reissuing the applicant a DD Form 214 showing his characterization of service as Honorable.

	 
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, U.S. Code, 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 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214.  At the time, this regulation prescribed the separation code "JRB" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 15, 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.  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.

4.  The 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 (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies.  This memorandum provided that, effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the:

* character of service to honorable, if warranted
* separation authority to "Army Regulation 635-200, paragraph 5-3"
* separation program designator code to "JFF"
* RE code to an immediately-eligible-to-reenter category
* narrative reason for discharge to "SECRETARIAL AUTHORITY"


ABCMR Record of Proceedings (cont)	 AR20170000992
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