IN THE CASE OF: BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150015493 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150015493 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 voiding the previously-issued DD Form 214 and issuing him a new DD Form 214 showing he was honorably discharged by reason of Secretarial Authority with a separation program designator code of JFF and a reentry eligibility code of 1 effective 3 September 1954. ___________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: 24 January 2017 DOCKET NUMBER: AR20150015493 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, the daughter of a former service member (FSM), requests an upgrade of her father's undesirable discharge to honorable. 2. The applicant states her father's health is failing and they are in desperate need of additional services that are not currently available. 3. The applicant provides: * self-authored letter, dated 9 September 2015 * FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) * letter from the National Personnel Records Center, dated 16 July 2015 * New York Times article, dated 6 September 2015, titled "Ousted as Gay, Aging Veterans are Battling Again for Honorable Discharges" * Durable Power of Attorney * correspondence from a Member of Congress, dated 21 September 2016 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 complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. 3. The FSM's DD Form 214 shows: * he enlisted in the Regular Army on 26 February 1952 * he was discharged on 3 September 1954 under the provisions of Army Regulations 615-363 (Enlisted Men – Release from Active Duty, Release to and Discharge from Reserve Components) and 600-443 (Personnel – Separation of Homosexuals) * his character of service was undesirable * he completed 2 years, 6 months, and 8 days of creditable active service * he had no lost time 4. The applicant provided a self-authored letter, dated 9 September 2015, stating: a. She is the legal guardian and caretaker for her father. She has been caring for him for the past 5 years and he is in failing health. b. In October 2014, she applied for a copy of his DD Form 214 to apply for Department of Veterans Affairs benefits. In July 2015, she finally received a copy of his DD Form 214 along with a letter stating his military records were in an area that suffered the most damage in a fire in 1973 and may have been destroyed. c. She was shocked to find out her father's discharge was undesirable and that he was discharged for homosexuality. Her father raised three children and was married to her mother for over 26 years. He served his country for 2 years, 6 months, and 9 days. d. The military has changed its policy through the repeal of "Don't Ask, Don't Tell (DADT)" and sexual orientation has no more bearing on a Soldier's fitness for military service. She is requesting an upgrade of her father's undesirable discharge to honorable based on the Under Secretary of Defense memoranda, dated 28 January 2011 and 20 September 2011. e. She provided a copy of a similar case in point (Docket Number AR20120003566) where the Board issued a new DD Form 214 showing an honorable discharge. She also provided a copy of her father's DD Form 214 and a New York Times article stating that since the 2011 repeal of DADT, a Presidential policy grants an honorable discharge to any veteran who was kicked out for homosexuality unless there were aggravating factors and that records from the Department of Defense show 80 percent of the nearly 500 requests submitted since 2011 have received an upgrade. REFERENCES: 1. Army Regulation 615-363, in effect at the time, provided for the release from active duty and release to and discharge from Reserve Components for enlisted men. 2. Army Regulation 600-443, in effect at the time, prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army. This regulation stated that homosexual personnel coming within the purview of the Department of the Army policy fall into several categories which may or may not overlap and would be more or less complicated by the facts and circumstances peculiar to the individual case. A homosexual act – bodily contact between persons of the same sex actively undertaken or passively permitted by either or both parties – may fall under the following classifications. a. Class I: Those cases which involved accompaniment by assault or coercion as characterized by an act in or to which the other person involved did not willingly cooperate or consent or where the consent was obtained through force, fraud, or actual intimidation, thereby constituting the invasion of the rights of another, or any homosexual action with a child under the age of consent, whether the child cooperates or not. b. Class II: Those cases wherein true or confirmed homosexual personnel have engaged in one or more homosexual acts or where evidence supports proposal or attempt to perform an act of homosexuality and which does not fall into the category of Class I. There is no distinction in the administrative handling of the cases of alleged participation in homosexual acts while a member of the Army based upon whether the role of a person in any particular action was active or passive. c. Class III: Those rare cases wherein personnel only exhibit, profess, or admit homosexual tendencies and wherein there are no specific, provable acts or offenses, or court-martial jurisdiction does not exist. All persons who confess homosexual tendencies shall not necessarily be discharged merely on the basis of confession of homosexuality. 3. Army Regulation 600-443 also states Class I requires mandatory trial by a general court-martial and Class II requires submission of a signed statement accepting an undesirable discharge; resignation for the good of the service in lieu of a signed statement (personnel who served at least 3 years); trial by general court-martial (if the circumstances warrant); or referral to Headquarters, Department of the Army, for disposition. 4. 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. 5. 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 to "JFF" * characterization of the discharge to "HONORABLE" * reentry eligibility (RE) code to an immediately-eligible-to-reenter category 6. 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 7. 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. 8. 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 that same or prior periods. Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action. 9. 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. DISCUSSION: 1. In the absence of evidence to the contrary, it must be presumed the FSM's discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. 2. Nevertheless, the law has since been changed. Soldiers separated solely for homosexuality should now have their reasons for discharge and RE codes changed. 3. Under current DOD policy, the FSM's DD Form 214 should be corrected to show his: * narrative reason for separation as "SECRETARIAL AUTHORITY" * SPD code as "JFF" * RE code as "RE-1" * characterization of service as "HONORABLE" //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015493 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015493 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2