IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150010183 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 IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150010183 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: * issuing her a new DD Form 214 (Certificate of Release or Discharge from Active Duty) showing in: * Item 25, "Army Regulation 635-200, paragraph 5-3" * Item 26, "JFF" * Item 27, "RE-1" * Item 28, "Secretarial Authority" * issuing her an Honorable Discharge Certificate, dated 28 June 1990, in lieu of the General Discharge Certificate she currently holds _____________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. IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150010183 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 an upgrade of her general discharge to an honorable discharge. 2. The applicant states the "Don't Ask Don't Tell" (DADT) Act was repealed in 2010, thus allowing openly gay and lesbian individuals to serve on active duty. They are not only allowed to serve, but they will also be honorably discharged unless there were underlying issues. She believes her discharge is unjust due to DADT. The military no longer participates in this discriminatory practice. Therefore, her discharge should be upgraded to honorable. She was unaware that she could request an upgrade of her discharge. 3. The applicant provides no additional evidence. 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 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 the cases 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. 2. The applicant enlisted in the U. S. Army Reserve on 22 September 1989. She entered active duty for training (ADT) on 9 November 1989. She completed training and was awarded military occupational specialty 44B (Metalworker). She was promoted to pay grade E-2 on 1 May 1990. 3. Orders Number 94-27, issued by the U.S. Army Aberdeen Proving Ground Support Activity, MD on 11 May 1990, show the applicant was scheduled for release from ADT effective 16 May 1990. It appears she continued on AD beyond that date as a result of a criminal investigation. 4. A memorandum, subject: Results of Criminal Inquiry, dated 18 May 1990, shows an investigation was initiated as a result of a criminal inquiry pertaining to a reported suspected sexual relationship existing between two female Soldiers (the applicant was not one of the Soldiers). The U.S. Army Criminal Investigation Command concluded they were unable to substantiate any criminal acts had been committed by one of the female Soldiers. The memorandum noted the applicant had also spent time at one of the Soldier's off-post residence. 5. On 30 May 1990, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Administrative Separations), chapter 15, for homosexuality, with a general discharge. The company commander stated the reasons for the proposed action were the applicant's sworn statements and contents of various cards and letters that expressed a preference for female companionship of a sexual nature. He advised the applicant of her rights. 6. On the same date, the applicant acknowledged receipt of the proposed separation action under chapter 15. She stated that she would inform her command of her intentions to exercise her rights by signing the election of rights letter. Her record is void of any submission from her. 7. On 7 June 1990, the applicant's company commander recommended approval of the applicant's discharge. He stated the applicant had no record of trials by court-martial or other disciplinary action including nonjudicial punishment and no reductions in rank/pay grade. 8. On 8 June 1990, the applicant's battalion commander requested a waiver of a rehabilitation transfer and recommended approval of the applicant's discharge. 9. A Report of Mental Status Evaluation, dated 14 June 1990, shows she was cleared for any administrative action deemed appropriate by the command. 10. On 22 June 1990, the separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate. 11. She was discharged accordingly in pay grade E-2 on 28 June 1990. She was credited with completing 7 months and 20 days of net active service. Her service was characterized as general, under honorable conditions. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) lists in: * Item 25 (Separation Authority) – "Army Regulation 635-200, paragraph 15-3a" * Item 26 (Separation Code) – "JRA" * Item 27 (Reenlistment (RE) Code) – "RE-4" * Item 28 (Narrative Reason for Separation) – "Engaged, Attempted to Engage In, or Solicited Another to Engage in Homosexual Acts" 12. There is no evidence any homosexual acts occurred by use of force, coercion, or intimidation. There are also no instances of nonjudicial punishment or court-martial convictions in her records. REFERENCES: 1. Army Regulation 635-200, chapter 15, in effect at the time, prescribed the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 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 there was a finding that during the current term of service 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; openly in public view; for compensation; aboard a military vessel or aircraft; or 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 (emphasis added). 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), in effect at the time, stated that SPD codes were three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of "JRA" was the correct code for Soldiers separating under paragraph 15-3a for engaging in homosexual acts. Additionally, the SPD/RE Code Cross Reference Table established an RE code of "4" as the proper RE code to assign Soldiers separating under this authority and for that reason. 3. The Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Title 10, United States Code, section 654, 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. The memorandum states: a. Effective 20 September 2011, 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 Code "JFF," and the RE code to an immediately-eligible-to-reenter category). b. For the aforementioned 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 and there were no aggravating factors in the record, such as misconduct. 4. 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. 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 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 applicant was discharged on 28 June 1990 under the provisions of Army Regulation 635-200, paragraph 15-3a, for homosexual acts, with a general discharge. She acknowledged receipt of the chapter 15 separation action and elected to waive her rights. 2. Army regulations in effect at the time of her discharge, required that a member who was found to have engaged in, attempted to engage in, or solicited a homosexual act be discharged. 3. She was properly and equitably discharged in accordance with the governing regulation in effect at the time. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. The available record contains no evidence of procedural or other errors that would have jeopardized her rights. 4. Nevertheless, the law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and RE code changed. There is no evidence in her records of misconduct during her period of service. 5. In view of the foregoing, it would be appropriate to issue her a new DD Form 214 with the characterization of service as honorable and the separation authority as Army Regulation 635-200, paragraph 5-3, with an SPD code of JFF, and an RE code of 1. The narrative reason for separation should also be changed to Secretarial Authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010183 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010183 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2