BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160001456 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160001456 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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: 30 May 2017 DOCKET NUMBER: AR20160001456 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: a. removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 12 October 2007 from the applicant's Official Military Personnel File (OMPF); b. an upgrade of her general discharge to honorable; and c. correction of the separation code, narrative reason for separation, and reentry eligibility (RE) code shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. Counsel states: a. The applicant enlisted in the Army in October 2006 when she was 20 years old. She completed her training and was "mobilized to South Korea [should read assigned for overseas duty in the Republic of Korea]" for 1 year. That year would prove to be a traumatic one as she experienced consistent harassment by her company commander regarding her sexual orientation. Her commander repeatedly questioned her about her sexual orientation. At the time, given the Army's position on openly gay service members, the applicant could not admit her true sexual orientation. She felt intimidated and harassed by her commander. b. At some point while off post, the applicant was confronted by a U.S. Air Force security guard who claimed she was acting sexually toward another female while at a public bar. She was later accused of committing indecent acts and was given nonjudicial punishment under Article 15, UCMJ. She was also demoted to E-2 and given extra duty. She felt traumatized by the experience and questioned her desire to remain in the Army. c. After she left Korea and returned home, she was absent without leave (AWOL) because her command denied her leave and she needed to attend to her ailing grandparents. She was gone for about 3 months and she voluntarily returned to her unit. After her return, she was given the option of remaining in the Army or being processed out. Due to her previous traumatic experiences in Korea, she made the difficult decision to separate from the Army and she received a general discharge for misconduct. d. After she was discharged, she was inexplicably arrested by civilian authorities in October 2013 because the Army failed to withdraw the AWOL warrant and she spent 5 days in jail until the Army withdrew the erroneous warrant. e. The applicant has had no other problems with the law, either before or after serving in the Army, and she currently works as a behavioral health specialist. She would like to obtain more education, but she was denied her Montgomery GI Bill benefits due to the characterization of her discharge. The discharge also adversely affected her job opportunities. Absent the traumatic and discriminatory episode in South Korea, she would have remained in the military through her full enlistment term and may have chosen to remain for a career. f. The applicant's DA Form 2627 in her file is not equitable based on the Under Secretary of Defense's memorandum, dated 20 September 2011. This memorandum provides policy guidance for service discharge review boards to follow when taking action on applications from former service members discharged under the "Don't Ask, Don't Tell (DADT)" or prior similar policies. g. The facts and circumstances surrounding the applicant's administrative separation indicates she was a good Soldier and was discharged primarily based on accusations that she committed homosexual acts and/or admissions which constituted misconduct without any direct evidence of the same. The applicant was the target of harassment and discrimination due to her sexual orientation when she received nonjudicial punishment under Article 15 while serving in Korea. This unjust nonjudicial punishment fostered a sense of betrayal by and mistrust of the Army in the applicant. The DA Form 2627 in question should be removed from her file and its effect on the applicant's future actions should be considered when deciding an appropriate course of action with regard to the rest of her record correction requests. h. The applicant was discriminated against due to her perceived sexual orientation by her commander while serving in Korea. These acts of discrimination sent into effect a series of events, then ended with the applicant being discharged from the Army under honorable conditions (general). The conduct for which the applicant was being discriminated against is now perfectly legal and acceptable in the Army. Sexual orientation is no longer a valid reason for separation or discrimination and, had the applicant served a few years later than she did, she might still be serving today. i. The applicant did not receive adequate advice from counsel and her command regarding the separation process. j. She was unfairly denied personal leave to care for her sick family members. She returned home to care for her sick grandparents. Her experience with discrimination while serving in Korea shaped her distrust of the military and formed a narrative where the military lacks empathy for its service members. She continued to receive heartfelt requests from her family for assistance in caring for her grandfather and she acted on this family need. She realizes this was a mistake and directly led to her discharge from the military, but the only thing she was thinking about at the time was the health and welfare of her grandfather. 3. Counsel provides: * self-authored letter from the applicant * statements from the applicant's grandfather and grandmother * DA Form 2627, dated 12 October 2007 * DA Forms 4187 (Personnel Action) * Army Discharge Review Board Case Report and Directive * Secretary of Defense memorandum, dated 28 January 2011, subject: Repeal of Don't Ask Don't Tell and Future Impact on Policy 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 Regular Army on 3 October 2006 for a period of 3 years and 19 weeks. 3. On 28 September 2007, she was counseled for using provoking speeches or gestures and committing indecent acts with another. 4. She provided a DA Form 2627, dated 12 October 2007, showing she accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for using provoking words toward U.S. Air Force Security Police and committing indecent acts with a female Soldier on or about 1 September 2007 at or near Osan Air Base, Republic of Korea. Her punishment included reduction to E-2 (suspended), forfeiture of pay, extra duty, and restriction. The imposing commander did not direct filing the DA Form 2627 in the performance or restricted folders of her OMPF. She elected not to appeal the imposed punishment. 5. On 29 April 2008, she was honorably discharged for immediate reenlistment. She reenlisted on 30 April 2008 for a period of 3 years. 6. She provided DA Forms 4187 showing she was AWOL from: * 12 August 2008 to 10 September 2008 * 22 September 2008 to 28 May 2009 7. Her records are void of the specific facts and circumstances surrounding her discharge action. However, her DD Form 214 shows she was discharged under honorable conditions (general) on 21 August 2009 by reason of misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c. She completed 2 years, 10 months, and 19 days of creditable active service. 8. Her DD Form 214 shows the following entries: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph  14-12c * item 26 (Separation Code) – JKQ * item 27 (Reentry Code) – 3 * item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) 9. Her OMPF in the interactive Personnel Electronic Records Management System does not contain a copy of the contested DA Form 2627. 10. Her records contain a DD Form 616 (Report of Return of Absentee), dated 14 October 2011, showing she was AWOL from 25 April 2011 until she was apprehended by civil authorities on 14 October 2011 and returned to military control. 11. On 31 October 2011, the Army Discharge Review Board denied her request for a discharge upgrade to honorable. 12. Counsel provided an undated self-authored letter from the applicant stating: a. Joining the Army was always a dream of hers because her grandfather was a Marine. She was only 1 month and 19 days short of completing a 3-year enlistment, which would have qualified her for benefits. b. Her mother is in prison for life and her father was never around. Her grandparents were her guardians. In 2008, her grandmother suffered a brain aneurism that left her incapable of taking care of herself. Her grandfather's arthritis became very severe and he needed knee replacements. With no one to help them physically and financially, she returned home to care for them. c. She knows being AWOL was not the honorable thing to do, but the only people she has were in such a vulnerable state that she did not know what else to do. As soon as her grandparents were situated, she returned to her duty station on her own terms. d. Since her discharge, she has been working with special needs and disabled adults. She is a hard worker and loves what she does. She has a clean record. 13. Counsel also provided medical documentation showing the applicant's grandparents had medical conditions/problems in 2008. REFERENCES: 1. Army Regulation 635-200 provides 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Paragraph 14-12c provides that Soldiers are subject to action for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. c. Chapter 15, in effect at the time, provided that a Soldier would be discharged if the Soldier engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts. 2. 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 includes a list of RE codes. a. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated. b. RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation but disqualification is waivable. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JKQ applies to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). 4. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows Soldiers who are assigned SPD code JKQ will be assigned RE code 3. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Appendix B (Documents Required for Filing in the OMPF and/or the integrated Personnel Electronic Records Management System) provides that a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 7. 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. a. Effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * separation program designator (SPD) code to "JFF" * character of service to "HONORABLE" * reentry eligibility (RE) code to an immediately-eligible-to-reenter category b. For the above upgrades to be warranted, 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. 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. Although counsel contends the applicant was the target of harassment and discrimination due to her sexual orientation, there is no evidence and he provided no evidence to support this contention. 2. Counsel's arguments pertaining to repeal of DADT were noted. However, the applicant was discharged for misconduct for commission of a serious offense under the provisions of chapter 14, not homosexual conduct under the provisions of chapter 15. 3. Counsel's request to remove the applicant's DA Form 2627 imposed on 12 October 2007 from her OMPF was noted. However, the contested DA Form 2627 is not filed in her OMPF. 4. Counsel's remaining contentions were carefully considered. In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for her discharge were commensurate with her overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001456 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001456 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2