ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 25 August 2020 DOCKET NUMBER: AR20200004046 APPLICANT REQUESTS: An upgrade of her under honorable conditions (General) characterization of service to honorable, and correction of her narrative reason for separation, and reentry (RE) code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she was assigned a character of service of, under honorable conditions, general, a narrative reason for separation of “Homosexuality Admission” and an RE code of 4. These codes were assigned based solely on her sexual orientation. The law has changed and she believes her discharge should be corrected to reflect these changes. 3. The applicant's records show she enlisted in the Regular Army (RA) on 12 October 1988 for 3 years and she held military occupational specialty 94B (Food Service Specialist). She was assigned to Fort Drum, NY with duties in her MOS on 4 January 1990. 4. The applicant’s service record contains a personal statement, dated 28 November 1990, addressed to her commander in which she states, “In 1989, something that I did not expect happened, I met a person of my own sex and I fell in love with her. After I was assigned to Fort Drum, we started living together and I have decided that this is the person I want to share my life with and this is the reason that I'm requesting separation from the Army under Army Regulation (AR) 635-200, chapter 15. I have talked to my NCOIC, Sergeant First Class and an Army Chaplain. After talking to both of these people I decided that my lifestyle does not match with Army Standards anymore and I'm just trying to be honest for the good of the Army and myself.” 5. Two Reports of Mental Status Evaluation, dated 3 and 5 December 1990, show as part of the discharge process she was evaluated and cleared for administrative action deemed appropriate by her chain of command. 6. A Report of Medical Examination, dated 5 December 1990, shows as part of the discharge process, she was found qualified for separation. 7. A Criminal Investigation Division (CID) Report of Investigation, message, date time group 261950Z, DEC 90, shows an initial investigation disclosed between November 1989 and December 1990 the applicant and a civilian female participated in consensual sodomy and indecent acts. Both the applicant and the civilian female provided sworn statements acknowledging their participation was consensual. 8. Two DA Forms 3881 (Rights Warning Procedure/Waiver Certificates) signed by both the applicant and the consenting participant were advised they were suspected of sodomy and indecent acts. The Final CID Report of Investigation is not in the available service record. 9. On 14 January 1991, the applicant’s immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15, Army Regulation (AR) 635-200 (Personnel Separations) for homosexuality. The specific reason for the discharge was the applicant stated she was in love with her sexual partner and wanted to spend the rest of her life with her. The immediate commander recommended the issuance of a general discharge. 10. On 17 January 1991, the applicant acknowledged receipt of the commander's notification and she was afforded the opportunity to consult with legal counsel and she declined. She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her. She further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her. 11. As a part of the separation process she submitted nine, undated statements, from a captain, the food service officer; a sergeant major; a sergeant first class, food service advisor; staff sergeant, food service manager; food service sergeant; her peers; and a civilian employee who all recommend that she be given an honorable discharge. She was always professional, she was pleasant, and performed her job well. She set a high personal appearance sufficient for junior Soldiers to emulate. She met and surpassed MOS and “SQT” standards for her grade and higher. She was a shift leader and she performed her duties among the best. She demonstrated honesty, dignity, and integrity. They all indicated she was a good person and hard worker. 12. On the same date, her immediate commander initiated separation action against her in accordance with AR 635-200 by reason of homosexuality. The commander stated she admitted to engaging in homosexual activities starting in 1989. The activity took place at her residence in Watertown, NY. She also stated that she loved her sexual partner and that she wanted to spend the rest of her life with her partner. 13. On 17 January 1991, senior defense counsel recommended separation with an honorable discharge. Her performance was excellent, she had no nonjudicial punishment, or adverse counseling statements. 14. On 30 January 1991, Trial Counsel, reviewed the applicant’s separation action and found it legally sufficient. 15. On 4 February 1991, her intermediate commander recommended separation with a general discharge. 16. On 5 February 1991, the separation authority approved the applicant's discharge under the provisions of chapter 15, AR 635-200. Accordingly, she was discharged on 11 February 1991. Her DD Form 214 shows she completed 2 years and 4 months of creditable active service. It also shows in: * Item 24 (Character of Service), Under Honorable Conditions (General) * Item 26 (Separation Code), JRB * Item 27 (Reentry (RE) Code), RE-4 * Item 28 (Narrative Reason for Separation), Admission of Homosexuality/Bisuality 17. Her discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. 18. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating service members based on their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and Readiness) issued guidance stating Boards should normally grant requests for character of service upgrades when the former Soldier's separation was due to DADT or a similar earlier policy. The guidance authorized Boards to amend the Soldier's narrative reason for discharge, modify their character of service to honorable, and change the RE code to reflect immediate eligibility for reentry. For the above upgrades to be warranted, the original discharge had to be based solely on DADT (or a similar policy in place prior to enactment of DADT, and no other aggravating factors in the record, such as misconduct. 19. The applicant argues that she was assigned a character of service of under honorable conditions, general, a narrative reason for separation of Admission of Homosexuality/Bisexuality, and an RE code of 4 based on the law that was in effect at the time. The law has changed and she believes her discharge should be corrected to reflect those changes. 20. The law has 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 characterizations of service changed. The evidence of record shows the applicant's record is void of adverse counseling statements or disciplinary actions. 21. In accordance with DOD guidance, her overall record contains no evidence that would present a barrier to correcting her record to show she was separated by reason of Secretarial Authority (Paragraph 5-3, AR 635-200), with an SPD code of "JFF" and an RE code of "1." 22. She completed 2 years and 4 months of her 3 year service obligation. In reaching its determination, the Board can consider the applicant's petition, the new laws, and her service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. The applicant was serving honorably until she was separated after she and a civilian female were investigated for consensual homosexual activity. With the circumstances discussed in this case, the Board agreed it is equitable and just to upgrade the applicant's discharge BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 amending the applicant’s DD Form 214 ending 11 February 1991 showing the following: * item 24 (Character of Service) to "Honorable" * item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code) to "JFF" * item 27 (Reentry (RE) Code) to "1" * item 28 (Narrative Reason for Separation) to "Secretarial Authority" 10/26/2020 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, chapter 15 at the time, prescribed the 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. In all other cases, the type of discharge would reflect the character of the Soldier’s service. 3. 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. 4. 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 to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)) * characterization of discharge to honorable * RE code to an immediately-eligible-to-reenter category 5. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: (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. 6. 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 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. AR 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve. Table 3-1 included a list of the RA RE codes. RE codes are numbered 1, 3, and 4. * 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 the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted * RE-4 applies to Soldiers ineligible for reentry 8. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 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. At the time, this regulation prescribed SPD code JRB as the appropriate code to assign to Soldiers separated under the provisions of chapter 15, Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason. //NOTHING FOLLOWS//