IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150005579 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 correction of his military service records to remove all references to homosexuality and an upgrade of his general, under honorable conditions discharge. 2. The applicant states that his military service records should be changed based on current changes in the law. a. He states that he was discharged from the Wisconsin Army National Guard (WIARNG) on 21 April 1997. His [National Guard Bureau] NGB Form 22 (Report of Separation and Record of Service) should be changed to show he was honorably discharged with a reenlistment eligibility (RE) code of RE-1 and a narrative reason for separation that does not reflect or state homosexuality. b. He also states that his records should be corrected to show he was promoted to pay grade E-5 based on his completion of training with the WIARNG, his years of active and reserve service, and his prior service in the U.S. Marine Corps (USMC). He adds that he completed a Bachelor of Science degree at the University of Wisconsin–Platteville and a Master of Business Administration degree at Rockford University, Rockford, IL. In addition, he currently works as a Veterans' Service Officer with the Illinois Department of Veterans Affairs (VA). 3. The applicant provides copies of his: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARNG Annual Statement * discharge orders * NGB Form 22 * six letters * Army Review Boards Agency webpage (Don't Ask, Don't Tell) 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's DD Form 214, as corrected by a DD Form 215 (Correction to DD Form 214), shows the applicant entered active duty in the USMC on 21 September 1988, was honorably released from active duty on 21 July 1994 based on completion of required active service, and transferred to the Marine Corps Reserve Support Center to complete his Reserve obligation. a. He had completed 5 years, 10 months, and 1 day of total active duty service this period and 11 months and 22 days of total prior inactive service. b. He attained the rank of corporal/pay grade E-4 on 1 September 1992. 3. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the Army National Guard of the United States (ARNGUS) and the WIARNG, in pay grade E-4, on 14 June 1995, for a period of 3 years. 4. He completed the Heavy Construction Equipment Operator Course at the Regional Training Institute, ND, and was awarded military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator). 5. Department of Military Affairs, Office of The Adjutant General, Madison, WI, Orders 115-508, dated 25 April 1997, discharged the applicant from the ARNG and as a reserve of the Army on 21 April 1997, under the provisions of [National Guard Regulation] NGR 600-200 (Enlisted Personnel Management), paragraph 8-26w (Homosexuality), as confirmed by verbal orders of The Adjutant General, Wisconsin, on 21 April 1997. 6. The applicant's NGB Form 22 shows he enlisted on 14 June 1995 and he was discharged, in pay grade E-4, from the WIARNG and as a reserve of the Army, on 21 April 1997. It also shows in: * item 23 (Authority and Reason): NGR 600-200, paragraph 8-26w, Homosexuality * item 24 (Character of Service): General (under honorable conditions) * item 25 (Type of Certificate Used): NGB Form 56 [General Discharge Certificate] * item 26 (Reenlistment Eligibility): RE 4 7. A review of the applicant's available military personnel records failed to reveal any evidence of his administrative separation packet or that he: * served on active duty with the U.S. Army * served as a member of the U.S. Army Reserve * was recommended for promotion to grade E-5 * applied to the Army Discharge Review Board for review of his discharge 8. A Departments of the Army and Air Force, Joint Force Headquarters Wisconsin, Wisconsin National Guard, Madison, WI, letter, dated 14 January 2015, to the applicant shows that Major General D___ P. D____, The Adjutant General, WIARNG, stated that in accordance with ARNG Personnel Policy, Division Policy Memorandum Number 11-011, paragraph 5, he had reviewed the applicant's request to change the narrative reason for separation and to upgrade the characterization of service of his 21 April 1997 separation from the WIARNG. He also stated that the RE code is based on the narrative reason for separation. He informed the applicant that he did not have the authority to change the separation characterization from the WIARNG and as a Reserve of the Army. 9. In support of his application the applicant provides the following additional documents. a. State of Wisconsin, Department of Military Affairs, Office of The Adjutant General, Madison, WI, letter, dated 17 November 2003, in response to the applicant's request to change the reason for his discharge and upgrade the characterization of service. (1) It shows that Colonel A___ C. Z____, Director, Personnel and Administration, stated that the applicant's creditable service in the USMC was not, nor would not be, used in determining the characterization of his service in the WIARNG. (2) He noted that the applicant was processed for separation under the provisions of Army Regulation 135-178 (ARNG and Army Reserve – Separation of Enlisted Personnel), chapter 10 (Homosexuality), based on his homosexual admissions. The applicant's unit commander advised him of his legal rights and the characterization of service he was recommending. The applicant waived his right to an administrative separation board. The commander's recommendation to separate the applicant for homosexual conduct was forwarded for review to The Adjutant General. (3) The Adjutant General took into account the applicant's 2 years of service in the WIARNG and the unit commander's recommendations, and he directed separation from the WIARNG based on homosexual conduct with a general, under honorable conditions characterization of service. (4) He informed the applicant that no action would be taken regarding his request to have his characterization of service upgraded or his discharge amended to omit the reason for separation. b. An NGB, Office of Legislative Liaison, Arlington, VA, letter, dated 14 January 2015, to the applicant. It shows D___ W____, Chief Congressional Inquiries, responded on behalf of President B___ O____. She stated that the NGB does not have the authority to provide relief regarding the applicant's discharge and that his only recourse was to appeal to the ABCMR. 10. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject: Correction of Military Records Following Repeal of Section 654 of 10 U.S.C., 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 "don't ask, don't tell" (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" * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 11. 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 available evidence, such as misconduct 12. 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. 13. 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 that same or prior period. 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. 14. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant's administrative discharge was accomplished in accordance with regulations then in effect with no violations of any of his rights. Accordingly, the type of discharge was appropriate under the circumstances. 2. However, it appears the applicant was discharged based on homosexuality and actions not involving misconduct. a. His separation action was correct at the time. As such, reference to the basis for his discharge should not be removed from the administrative separation packet. Thus, there is an insufficient basis for removing from his military service records all references to homosexuality. b. The law regarding homosexual separations has subsequently 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 characterization of service changed. 3. It appears the applicant's overall record of service merits a characterization of service upgrade to fully honorable. Accordingly, in view of the current standards for discharges issued for homosexuality, it would now be appropriate to correct his NGB Form 22 to show his characterization of service as "honorable" and the narrative reason for separation as "Secretarial Authority." His NGB Form 22 should also be corrected to show an RE code of RE-1. 4. There is no evidence of record that shows the applicant was recommended for promotion during the period of service under review. Notwithstanding the recommendation to change the authority, narrative reason, RE code, and characterization of the applicant's discharge, there is insufficient evidence to support his contention that he should be promoted to grade E-5. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: a. voiding his NGB Form 22, issued on 21 April 1997, under the provisions of National Guard Regulation 600-200, chapter 10, for homosexuality; b. issuing him a new NGB Form 22 showing he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, by reason of Secretarial Authority with an RE code of RE-1; and c. issuing him an NGB Form 55 (Honorable Discharge Certificate). 2. The Board further determined that 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 removal from his military service records all references to homosexuality and promotion to grade E-5. ___________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. ABCMR Record of Proceedings (cont) AR20150005579 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005579 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1