BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160000410 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 BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160000410 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 voiding her 8 August 1996 DD Form 214 and issuing her a new DD Form 214 to show she was honorably discharged by reason of "Secretarial Authority" with a Separation Program Designator code of "JFF" and a Reentry code of "1." ____________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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160000410 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, in effect, correction of the separation authority, narrative reason for separation, separation program designator (SPD) code, and reentry (RE) code pertaining to her discharge. 2. The applicant states that Army Directive 2011-01 (Repeal of "Don't Ask, Don't Tell") eliminated the policy under which she was removed from military service. She states that her DD Form 214 (Certificate of Release or Discharge from Active Duty) should reflect her honorable service without any indication of the reason or basis for her discharge. 3. The applicant provides a copy of her DD Form 214. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel, a Veteran Service Officer, Will County Veterans Assistance Commission, Joliet, IL, requests correction of the applicant's administrative discharge. 2. Counsel defers to the applicant. 3. Counsel provides no additional documentary 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 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 U.S. Army Reserve (USAR) on 13 June 1991 for a period of 8 years. Upon completion of training she was awarded military occupational specialty 76J (Medical Supply Specialist). 3. She was honorably discharged from the USAR on 7 March 1995 and enlisted in the Regular Army on 8 March 1995 for a period of 3 years. 4. On 10 January 1996, the Deputy Commander, 20th Support Group, Taegu (Korea), appointed a commissioned officer pursuant to Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) to conduct an informal investigation into the facts and circumstances regarding possible conduct (by the applicant and another Soldier) inconsistent with Army regulations and conduct in violation of the Uniform Code of Military Justice, Articles 125 (Sodomy) and Article 134 (Indecent acts, solicitation of another to commit an offense). a. Upon completion of the investigation, the investigating officer recommended administrative separation of the applicant under the provisions of (UP) AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 15 (Discharge for Homosexual Conduct). b. On 6 April 1996, a Staff Judge Advocate officer reviewed the AR 15-6 investigation and found it to be legally sufficient, the findings were supported by substantial evidence, and the recommendations were consistent with the findings. 5. On 1 May 1996, the applicant's commander notified her of his intent to initiate separation action against her in accordance with AR 635-200, chapter 15. The reason for his proposed action was based on the applicant having committed homosexual acts and having made statements indicating a propensity to engage in homosexual acts. a. The commander also informed the applicant of her rights, of the administrative process available to her, and that he was recommending she receive an Other Than Honorable Discharge Certificate. b. The applicant acknowledged receipt of the correspondence. 6. Following the notification, the applicant acknowledged she had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights. Based on the recommendation of the company commander: a. she requested consideration of her case by an administrative separation board and personal appearance before an administrative separation board; b. she requested consulting counsel and representation by military counsel; c. she indicated that she would not submit statements in her own behalf; and d. she acknowledged that she understood she could receive a general, under honorable conditions or an under other than honorable conditions discharge, and that she may expect to encounter substantial prejudice in civilian life in the event either type of discharge was issued to her. e. The applicant and counsel each placed their signature on the document. 7. The chain of command recommended approval of the applicant's separation and that she receive an other than honorable conditions discharge. 8. On 18 July 1996, the applicant submitted a request for conditional waiver to the separation authority. She voluntarily waived consideration of her case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than honorable. 9. On 18 July 1996, the separation authority approved the applicant's request for a conditional waiver and directed she be discharged UP AR 635-200, chapter 15, with an honorable character of service. 10. The applicant's DD Form 214 shows she was discharged on 8 August 1996. She had completed 1 year, 5 month, and 1 day of net active service this period. It also shows in: * item 24 (Character of Service): "Honorable" * item 25 (Separation Authority): "AR 635-200, paragraph 15-3a" * item 26 (Separation Code): "JRA" [Homosexual Conduct (Acts)] * item 27 (Reentry Code):– "4" [Ineligible for Reenlistment] * item 28 (Narrative Reason for Separation): "Homosexual Act" 11. A review of the applicant's military personnel records failed to reveal evidence that she applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15 prescribed general policies concerning homosexual conduct, including statutory provisions, pertinent definitions, and commander guidelines for fact-finding inquiries. a. Paragraph 15-2 (Discharge policy) provided that homosexual conduct was grounds for separation from the Army under the criteria in paragraph 15-3. This includes pre-service, prior service, or current service homosexual conduct. The term homosexual conduct includes homosexual acts, statement(s) that demonstrate a propensity or intent to engage in homosexual acts, or homosexual marriage or attempted marriage. A statement that demonstrates a propensity or intent to engage in homosexual acts is grounds for discharge not because it reflects the Soldier's sexual orientation, but because the statement indicates a likelihood that the Soldier engages in, or will engage in, homosexual acts. b. Paragraph 15-3 (Criteria for discharge) provided that, except as indicated, a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority. It shows, in pertinent part, in subparagraph a, the Soldier has engaged in, attempted to engage in, or solicited another person to engage in a homosexual act or acts. 2. The "Don't Ask, Don't Tell" (DADT) policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 3. Department of Defense (DoD) Instruction 1332.14, dated 28 August 2008, with Change 1, dated 29 March 2010, provided DoD policy, responsibilities, and procedures governing administrative separation of enlisted personnel from the Military Services. In pertinent part, it implemented changes to DoD policy pertaining to separation based on homosexual conduct and characterization of service based on a Service Member's performance in the military during the relevant period of his or her service. 4. Under Secretary of Defense, Washington, DC, memorandum, dated 28 January 2011, subject: Repeal of Don't Ask, Don't Tell and Future Impact on Policy, provided policy guidance that would take effect on the date of repeal of DADT and informed the Military Services about the steps each should take immediately in order to prepare for the effective date of appeal. 5. Certification, "Don't Ask, Don't Tell" Repeal Act of 2010, shows after certification by the Secretary of Defense and Chairman of the Joint Chiefs of Staff, on 22 July 2011, the President of the United States certified the implementation of the necessary polices and regulations pursuant to Public Law 111-321, (Title 10, United States Code, section 654). 6. Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., AR 635-200, paragraph 5-3) and the SPD code to "JFF" (Secretarial Authority). It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 7. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214 and shows for: * item 25, enter the regulatory or other authority cited in directives authorizing separation * item 26, enter the proper SPD representing the specific authority for separation * item 27, see AR 601-210 (Active and Reserve Components Enlistment Program) for RE codes to be entered * item 28, enter the narrative reason for separation as shown in AR 635-5-1 (SPD Codes) based on the regulatory or other authority 8. AR 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. a. It shows the SPD code of "JRA" is the appropriate code to assign Soldiers separated UP AR 635-200, paragraph 15-3a, due to "Homosexual Conduct (Acts)." b. The SPD/RE Code Cross Reference Table stipulates that an RE code of "4" will be assigned to members separated with an SPD code of "JRA." 9. AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army. Table 3-1 includes a list of the Regular RE codes and shows that – * RE-1 applies to Soldiers who are qualified for reentry or continuous service at time of separation, if all other applicable criteria are met * RE-4 applies to Soldiers who are ineligible for reenlistment due to a nonwaivable disqualification DISCUSSION: 1. The applicant served on active duty from 8 March 1995 to 8 August 1996. During the period of the applicant's military service an AR 15-6 investigation found possible conduct by her that was inconsistent with Army regulations and conduct in violation of the UCMJ, Article 125 and Article 134. Accordingly, her chain of command initiated separation action against her and she was honorably discharged. 2. The applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error. 3. 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 the authority and reason for discharge changed, and the RE code should normally be changed to an immediately-eligible-to-reenter category (i.e., RE Code "1"). There is no evidence in the available records that presents a barrier to recommending these corrections in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000410 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000410 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2