IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190004432 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 September 2002, to show her service was characterized as honorable and her reentry (RE) code as "1" instead of "4." Additionally, she requests a personal hearing before the Board. 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 12 March 2019 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 from the Army under "Don’t Ask, Don’t Tell" (DADT) and was given an entry-level, uncharacterized discharge. However, she has an RE code that will not permit her to ever rejoin the military. At the time of her discharge she had served less than 120 days and was still in basic training, injured, and waiting to be recycled. She never got the chance to be the Soldier she wanted to be. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 11 April 2002. She entered active duty for training (ADT) on 13 May 2002, for the purpose of completing her initial entry training. Her records indicate she did not complete initial entry training and was not awarded a military occupational specialty (MOS). 4. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, the DD Form 214 she was issued shows she was discharged on 23 September 2002, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 15-3b, by reason of homosexual admission. She completed four months and 11 days of net active service this period and her DD Form 214 contains the following entries in: * item 24 (Character of Service) – Uncharacterized * 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 5. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of her separation. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for the consideration of discharge upgrade requests. The Board considered the applicant’s statement, her record of service, the reason for her separation and the character of service she received. The Board found no underlying misconduct associated with the applicant’s separation. Based on a preponderance of evidence and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 amending the applicant’s DD Form 214 for the period of service ending 23 September 2002 as follows: * item 24 (Character of Service) – “Honorable” vice “Uncharacterized”; * item 25 (Separation Authority) – “Army Regulation 635-200, Chapter 5” vice “Army Regulation 635-200, paragraph 15-3b”; * item 26 (Separation Code) – “JFF” vice “JRB”; * item 27 (Reentry Code) – “1” vice “4”; * item 28 (Narrative Reason for Separation) – “Secretarial Authority” vice “Homosexual Admission.” 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted 4. 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. 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. 5. Army Regulation 635-200 sets forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. 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. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. 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. 6. 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. This memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests in these cases to change the: * character of service to honorable, if warranted * separation authority to "Army Regulation 635-200, Chapter 5" * separation code to "JFF" * RE code to "1" * narrative reason for discharge to "SECRETARIAL AUTHORITY" //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004432 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004432 5 ABCMR Record of Proceedings (cont) AR20190004432 3