BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002574 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 BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002574 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. BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002574 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 reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to honorable. In addition, he is making the a new request to amend his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * item 26 (Separation Code (SPD)) – from "KFS" (In Lieu of Trial by Court-Martial) to "JFF" (Secretarial Authority) * item 27 (Reentry Code) – RE-1 (no waiver required) instead of RE-3 (waiver required) * item 28 (Narrative Reason for Separation) – "Secretarial Authority" instead of "For the Good of the Service – In Lieu of Court-Martial" 2. The applicant defers his statement and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel states: a. The applicant was discharged from the Army on 10 September 1990 after admitting to having had sexual contact with another man. Since his discharge, the Department of Defense (DOD) has repealed "Don't Ask, Don't Tell" (DADT). Today, service members can no longer be discharged solely for engaging in homosexual relationships. Based on current guidance, it was improper to discharge the applicant for his actions. As such, the applicant requests the Board make the above-stated corrections in the interest of justice. b. Counsel addressed the timeliness of the applicant's request, essentially stating the applicant only became aware he could file his petition after the repeal of DADT. c. Counsel provided a summary of the applicant's service and then specifically addressed the basis for court-martial charges: * in a sworn statement, dated 25 June 1990, the applicant admitted to having sexual contact with a fellow Soldier * he asserted he and the other Soldier had engaged in sexual activity on at least two other occasions; the applicant's sworn statement indicated this was voluntary sex between consenting adults * based on his statement, the applicant was charged with the court-martial offenses of sodomy and making a false official statement (by claiming the other Soldier was a willing participant) * faced with these charges, the applicant requested discharge under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * one of the three officers in his chain of command who made recommendations as to type of discharge indicated the applicant should be given a general discharge under honorable conditions * the applicant's request for discharge was ultimately approved, but he was given an under other than honorable conditions character of service * although part of his chapter 10 application included an admission of guilt to all charges and specifications, the applicant has always maintained he did not make a false official statement (counsel indicates this admission was coerced) * the applicant contends the reasons he agreed to the charges included that he was scared and the interrogation was lengthy, intense, and humiliating; he just wanted it to end * the applicant requests the Board accept his version of events and believe him when he states the sexual activity was consensual c. Counsel submitted legal arguments as to why the applicant should be considered eligible for relief, given the repeal of DADT. He notes that while the applicant was separated in lieu of trial by court-martial, the basis was homosexual activity. This, counsel asserts, places the applicant's discharge within the purview of the DADT repeal and the associated record corrections. 2. Counsel provides: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 August 1986 * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2823 (Sworn Statement), dated 25 June 1990 * DD Form 458 (Charge Sheet), dated 31 July 1990 * 1st Endorsement, dated 14 August 1990, subject: Request for Discharge for the Good of the Service [applicant] * applicant's request for discharge under the provisions of chapter 10, AR 635-200 * DD Form 214, ending 10 September 1990 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 1 November 1990 * letter, dated 27 October 1992 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 4 December 2006 * Record of Proceedings, Army Board for Correction of Military Records (ABCMR) Docket Number AR20060017398, dated 31 May 2007, with associated letters * DD Form 293, dated 11 October 2009 * letter, dated 18 March 2010 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060017398 on 31 May 2007. 2. The applicant, through counsel, submits new arguments not previously considered by the Board. Based on this, his request warrants consideration. 3. The applicant enlisted in the Regular Army on 17 July 1987. He held military occupational specialty 19D (Cavalry Scout). Following initial training he was assigned to Germany and arrived on or about 19 November 1987. 4. On 21 June 1990, Specialist (SPC) GME told his unit first sergeant (1SG) that, at about 0200 on 20 June 1990, the applicant had committed sodomy on him while he slept. Both SPC GME and the applicant provided sworn statements to Special Agent EA on 25 June 1990. The form contains a Criminal Investigation Command (CID) file number. The statements are summarized as follows: a. SPC GME's sworn statement essentially shows: * SPC GME was serving as the unit Charge of Quarters (CQ) runner on 20 June 1990 when, at about 0200, he was permitted to get some sleep; he went to the unit day room, sat in a chair, and nodded off * he woke up when he heard "the coke machine in the next room," after which the applicant came "with two cokes," he handed (SPC GME) one, and asked if he could get a cigarette * the applicant said he could not sleep; he initially sat two chairs away * SPC GME went back to sleep, but then woke up; he realized the applicant was sodomizing him * SPC GME immediately shoved the applicant and pushed the applicant's head away * SPC GME asked why he was doing this, to which the applicant replied he could not control himself; the applicant said he loved SPC GME and had always found him attractive * SPC GME went to the latrine to wash himself; when he returned to the day room, the applicant was still there; SPC GME asked him "why" again; the applicant told him not to feel guilty about what happened * the applicant said "he thought he was homosexual, but then felt that he was bisexual" * the conversation then changed and they talked as if nothing had happened; SPC GME left to wake up the other Soldiers * at about 1830, 21 June 1990, SPC GME told his 1SG what had happened; SPC GME affirmed no one came into the day room the entire time he was with the applicant b. The applicant's statement indicated, in effect: * he knew SPC GME was on CQ in the early morning hours of 20 June 1990, so he bought SPC GME a soda * he sat with SPC GME in the day room, borrowed a cigarette, and they talked and watched television together * the applicant saw SPC GME fall asleep; he moved closer, undid SPC GME's pants, and began to sodomize him * about 2 minutes later, SPC GME woke up and told him "you've got to stop, the CQ is right outside"; the applicant stopped * SPC GME told him, if the CQ had not been there, he would have had the applicant continue; they made plans to meet afterward at SPC GME's quarters * the applicant denied SPC GME pushed his head away and said this was not the first time they had engaged in sodomy * he recounted two other occasions; once while SPC GME's wife slept and the other when SPC GME's wife was back in the United States * the applicant stated he thought of himself as bisexual and said SPC GME may have mentioned being bisexual that night in the day room 5. On 31 July 1990, while still assigned in Germany, the applicant's commander preferred court-martial charges against him. The charges alleged one specification of forcibly, and without consent, performing a sex act on a fellow male Soldier, and one specification of making a false official statement. 6. On 14 August 1990, the applicant consulted with counsel (a military lawyer) and was advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ), as well as the elements of the offenses charged, and any relevant lesser-included offenses. He was told that at least one of the charges authorized the imposition of either a bad conduct or dishonorable discharge and that the evidence had established guilt beyond a reasonable doubt. He was further advised of the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. 7. He further acknowledged he: * was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person * understood by requesting discharge, he was admitting guilt to at least one of the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (later renamed the Department of Veterans Affairs) * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws 8. The applicant's company commander recommended a general discharge under honorable conditions, but gave no supporting rationale. His squadron and brigade commanders recommended separation under other than honorable conditions. 9. On 25 August 1990, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions discharge. He was discharged accordingly on 10 September 1990. 10. His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. It also shows he completed 3 years, 1 month and 24 days of net active service period. He was awarded or authorized the: * Army Service Ribbon * Army Good Conduct Medal (1st Award) * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60) 11. On 1 November 1990, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB denied his request on 19 August 1992 and on 27 October 1992 advised him via letter of its decision. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. d. Chapter 15 (Separation for Homosexuality), in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. (1) 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. (2) In all other cases, the type of discharge would reflect the character of the Soldier’s service. 2. The DADT policy was implemented in 1993 during the Clinton administration. 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. Under Secretary of Defense (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. The memorandum states that, 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" SPD Code JFF) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 4. For the above 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. 5. 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. 6. 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 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 those 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. 7. 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 the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification DISCUSSION: 1. The applicant served in the Regular Army from 17 July 1987 to 10 September 1990. During his military service, he admitted to committing homosexual acts. His chain of command initiated court-martial charges against him and he requested discharge in lieu of trial by court-martial. His discharge proceedings appear to have been conducted in accordance with the law and regulations as they were in effect at the time. His characterization of service also appears to have been commensurate with the reason for his discharge, based on those governing regulations. As such, he was appropriately assigned SPD "KFS" and an RE code of RE-3. 2. The law has since 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 characterizations of service changed. a. DOD guidance states 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 b. Although the applicant was not separated under chapter 15, AR 635-200, the basis was, nonetheless, his homosexual activity. c. The evidence of record shows, up to the point charges were preferred, the applicant's record was void of derogatory information or incidents of misconduct. (1) The applicant's commander preferred court-martial charges based on the allegation that homosexual activity was forced and not consensual. (2) The applicant, through counsel, contends he not only engaged in sodomy with the other Soldier on 20 June 1990, but also had done so, with that Soldier's active and consensual participation, on at least two other occasions. (3) By contrast, the other Soldier's statement indicates the homosexual activity was not consensual. * the applicant waited until the Soldier fell asleep to sodomize him (affirmed in the applicant's statement) * Soldier states he woke up, then allegedly pushed the applicant away; he asked, in effect, why he was being sodomized * the Soldier's statement affirmed no one came into the day room and observed what had occurred * the next day, the Soldier reported what had happened to the unit 1SG (4) The fact that the applicant waited until the other Soldier was asleep before sodomizing him diminishes the strength of the applicant's argument that SPC GME was a willing partner. A lack of consent appears to be further bolstered by SPC GME then reporting the applicant's action to the 1SG despite the evidence showing they had not been discovered. 3. The Board must determine which version of events to accept. a. If the applicant's version of events is accepted, it would appear that, coupled with his overall record of service, he could be eligible for an upgrade of his character of service to fully honorable by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." b. On the other hand, the preponderance of the evidence suggests SPC GME did not consent to being sodomized. The guidance from DOD clearly provides an exception for the granting of relief when the discharge was the result of misconduct. In this case, engaging in sexual activity without SPC GME's consent was considered serious misconduct in 1990 and would be considered so today as well. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002574 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002574 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2