SAMR-RB 11 May 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160017389 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 02 May 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by issuing her a new DD Form 214 showing in: • item 13 - "Air Assault Badge" • item 24 - "HONORABLE" • item 25 - "AR 600-8-4" • item 26 - "JFF" • item 28 - "SECRETARIAL AUTHORITY" 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 11 September 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160017389 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160017389 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of the applicant's DD Form 214 the Air Assault Badge. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading her discharge to fully honorable or adding the Parachutist Badge to her DD Form 214. _____________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: 2 May 2017 DOCKET NUMBER: AR20160017389 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, under honorable conditions discharge, to a fully honorable discharge. She also requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Air Assault Badge and Parachutist Badge. 2. The applicant states she was discharged prior to the implementation of "Don't Ask, Don't Tell (DADT)" based on her sexual orientation. She resigned her commission instead of elimination procedures, following a criminal investigation initiated by a fellow Soldier after she rejected his request to date him. Based on the recent letter from the Acting Under Secretary of Defense, she believes her record should show an honorable characterization of service. 3. The applicant provides a certificate of training dated 2 May 1985. 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 was appointed as a Reserve commissioned officer of the Army, via Reserve Officers' Training Corps, and executed an oath of office on 7 May 1984. 3. She also entered active duty on 7 May 1984 and she was assigned to Company G, 2nd School Battalion, U.S. Army Intelligence Center, Fort Huachuca, AZ, for completion of training. She completed the 24-week Military Intelligence Officer Basic Course, around November 1984. 4. Between 26 and 30 July 1984, the applicant's battalion commander conducted a Commander's Inquiry into allegations made in a statement by another commissioned officer raising issues of homosexuality and fraternization by the applicant. The inquiry concluded that: * the applicant was not a homosexual nor had committed any homosexual acts * the applicant did not fraternize as her socialization occurred on military terms of equality and friendship 5. Around December 1984, the applicant was reassigned to Company C, 519th Military Intelligence Battalion, Fort Bragg, NC. She was also promoted to first lieutenant (1LT). 6. Permanent Orders 85-78, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY on 6 May 1985, awarded her the Air Assault Badge. She provided the certificate. 7. On 13 November 1985, the Fort Bragg U.S. Army Criminal Investigation Command (CID) conducted an investigation into allegations that the applicant was involved in homosexual activities. 8. On 5 December 1985, the applicant's commander notified the applicant of his intent to initiate elimination action against her under the provisions of paragraphs 5-12a(7) and (10) of Army Regulation (AR) 635-100 (Personnel Separations - Officer Personnel). He cited the specific reason as the applicant's homosexuality and conduct unbecoming an officer, in that between June 1985 to November 1985, she engaged in a homosexual relationship with a sergeant and she maintained an improper relationship with the same sergeant who was assigned to the same company, by living together. The commander advised her of her rights and indicated his intent was to recommend a general discharge. 9. The applicant acknowledged receipt of the separation memorandum and submitted a statement, wherein she indicated: * the recommendation to separate her was excessive, inappropriate, and inequitable * her unit of assignment was fraught with officer-enlisted relationships; her friendship with the sergeant was neither unusual nor inappropriate * other officers who were previously separated for homosexuality received an honorable discharge * she was committed and loyal to the Army, but as she saw no future prospects and intended to tender her resignation at an appropriate time 10. During January 1986, she was relieved from her duties as a platoon leader and received a "Relief for Cause" officer evaluation report. The reasons cited throughout the OER were her inability to display sound judgment after duty hours and that her personal standards and/or personal relationship with an enlisted member of her company were not in compliance with the Army's established standards. 11. Documents in her service records indicate she voluntarily submitted her resignation under chapter 4 (Misconduct - Moral and Professional Dereliction), AR 635-120 (Personnel Separations - Officer Personnel), in lieu of the elimination action. 12. On 21 January 1986, by Message Number 211400Z January 86, Headquarters, Department of the Army (HQDA), approved her request for resignation in lieu of elimination and directed the servicing installation issue discharge orders for the applicant to effect her discharge under honorable conditions (general) in accordance with AR 635-100. The authority was to be this message and AR 635-120, chapter 4. 13. On 29 January 1986, Headquarters, 573rd Personnel Service Company, Fort Bragg, published Orders 18-107 ordering the applicant discharged effective 10 February 1986 by authority of chapter 4 of AR 635-120 and HQDA Message 211400Z Jan 86. 14. The applicant was discharged on 12 February 1986. Her DD Form 214 shows she was discharged with an under honorable conditions (general) characterization of service. Her DD Form 214 also shows she completed 1 year, 9 months, and 6 days of active service. It further shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar * Item 25 (Separation Authority) – DA Message 211400Z January 1986 and Chapter 4, AR 635-120 * Item 26 (Separation Code) – BNC * Item 28 (Narrative Reason for Separation) – misconduct, moral or professional dereliction 15. On 5 May 1989, the Army Discharge Review Board reviewed her discharge processing, but found it proper and equitable. The ADRB denied her request to change the characterization of service or the reason for discharge. 16. In May 1989, she petitioned the ABCMR to change her narrative reason for separation from "misconduct, moral or professional dereliction" to "homosexuality." 17. The ABCMR Record of Proceedings is not available for review. However, by letter dated 31 October 1989, the applicant was notified that the ABCMR granted her partial relief. As a result, she was issued a DD Form 215 (Correction to DD Form 214) that amended her DD Form 214 as follows: * Item 25 (Separation Authority) – from DA Message 211400Z January 1986 and Chapter 4, AR 635-120 to Chapter 3, AR 635-120 * Item 26 (Separation Code) – from BNC to FND * Item 28 (Narrative Reason for Separation) – from "misconduct, moral or professional dereliction" to "miscellaneous reasons, unqualified resignation" REFERENCES: 1. AR 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the form should be complete and accurate. Item 13 shows all awards and decorations. 2. AR 600-8-22 (Military Awards) states award of the basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School or have participated in at least one combat parachute jump. 3. AR 600-20 (Army Command Policy), in effect at the time of the applicant's discharge, prescribed policy on the basic aspects of command, military conduct and discipline, and the determination and precedence of rank. Paragraph 5-7(f) states relationships between service members of different rank which involve (or give the appearance of) partiality, preferential treatment, or the improper use of rank or position for personal gain, are prejudicial to good order, discipline, and high unit morale. Such relationships will be avoided. Commanders and supervisors will counsel those involved or take other action, as appropriate, if relationships between Service members of different rank- (1) Cause actual or perceived partiality or unfairness, (2) Involve the improper use of rank or position for personal gain, or (3) Can otherwise reasonably be expected to undermine discipline, authority, or morale. 4. AR 635-100, in effect at the time, provided the authority for the separation of commissioned and warrant officers from the active Army. 5. AR 635-120, in effect at the time, prescribed procedures whereby an officer on active duty may tender his or her resignation or be discharged and whereby officers on active duty or retired officers may be dropped from the rolls of the Army. Chapter 3 provided for unqualified resignation; Chapter 4 provided for resignation in lieu of elimination under AR 635-100; and Chapter 5 provided for resignation for the good of the service. Change 16, dated 1 August 1982, to AR 635-120, stated in paragraph 5-4 (Resignation for the good of the service due to homosexuality) that these resignations will be prepared and processed in accordance with paragraphs 2-2 and 2-3 and figure A-6. It is important that the additional information required by paragraph 5-15b, AR 635-100 accompany the letter of resignation. 6. AR 600-8-24 (Officer Transfers and Discharges), currently in effect, prescribes the officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 1-22(a) states an officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. b. Paragraph 1-22(b) states an officer will normally receive an Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge. 7. Article 134, paragraph 83, UCMJ, pertains to fraternization. The elements of this punitive article are that the accused was a commissioned or warrant officer; that the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner; that the accused then knew the person(s) to be (an) enlisted member(s); that such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 8. The "Don't Ask, Don't Tell" 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. 9. 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 (hereinafter DOD DADT memorandum), 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" (Separation Program Designator (SPD) Code JFF) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 10. 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 * there were no aggravating factors in the record, such as misconduct 11. 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. 12. 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 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. DISCUSSION: 1. The applicant served on active duty from 7 May 1984 to 12 February 1986 and she was investigated for homosexual involvement with an enlisted Soldier of the same sex. Her chain of command initiated separation/elimination action against her. 2. Documents in her service records indicate she voluntarily submitted her resignation under chapter 4 of AR 635-120, in lieu of the elimination action. In other words, the reason for separation was not homosexuality. 3. HQDA ultimately approved her discharge for "misconduct, moral and professional dereliction," under paragraph 5-12 of AR 635-100, and directed the issuance of a general discharge. The reason for separation under this paragraph of the governing regulation is not homosexuality. 4. The applicant resigned under the provisions of chapter 4, AR 635-120 for misconduct/moral and professional dereliction. Although such resignation allows for an honorable characterization of service, based on the actions that precipitated her elimination action, she was issued a general discharge. 5. The DOD DADT memorandum has two prerequisite conditions for amendment of a discharge. Those two conditions are (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT, and (2) there were no aggravating factors in the record, such as misconduct. In this case, the applicant was discharged for misconduct, moral and professional dereliction, under paragraph 5-12 of AR 635-100, and the misconduct the applicant participated in involved the applicant, as an officer, sharing living quarters with and participating in an intimate, sexual relationship with an enlisted Soldier. Such conduct is an aggravating factor regardless of gender – especially for an officer. 6. The version of AR 600-20 in effect at the time was not punitive and asserted that “relationships between officers and enlisted are prohibited and are contrary to the custom of the service and may constitute the offense of fraternization under the provisions of Article 134, UCMJ.” 7. Article 134, Fraternization, required that the government prove the offending relationship be prejudicial to good order and discipline and in violation of “the custom of the…service that officers shall not fraternize with enlisted members on terns of military equality”. The Manual for Courts-Martial at the time provided that “not all contact or association between officers and enlisted persons is an offense.” In this case the applicant was neither ordered to cease her activities relative to the NCO nor charged with fraternization. 8. Permanent Orders awarded the applicant the Air Assault Badge. This award is not listed on her DD Form 214. 9. There is no evidence in the applicant's records and she provided none to show she completed the Basic Airborne Course and/or was awarded the Parachutist Badge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017389 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017389 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2