IN THE CASE OF: BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017273 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: 11 April 2017 DOCKET NUMBER: AR20150017273 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 issuing him a new DD Form 214 to show he was honorably discharged effective 2 December 1965 by reason of Secretarial Authority with an SPD code of JFF and a Reentry Code of 1. _____________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: 11 April 2017 DOCKET NUMBER: AR20150017273 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 his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states his discharge status is discriminatory. It should be upgraded. He was discharged for homosexuality. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and separation packet. 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 enlisted in the Regular Army (RA) on 8 January 1964 and he held military occupational specialty 31M (Radio Relay and Carrier Operator). He served in Korea from 5 July 1964 to 15 July 1965. 3. On 4 May 1965, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving Camp Coiner on an unauthorized pass and without signing out, and for disobeying a lawful order. His punishment consisted of a reduction to E-2, restriction, and a forfeiture of pay. 4. He was honorably discharged from active duty on 6 July 1965 for immediate reenlistment. He was issued a DD Form 214 that captured his 1 year, 5 months, and 28 days of active service. 5. He reenlisted on 7 July 1965. He was further reassigned to the 141st Signal Battalion, Fort Hood, TX. While there, on 5 November 1965, he accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful in language to a noncommissioned officer (NCO). 6. On 9 November 1965, he underwent a mental status evaluation. His Report of Psychiatric Examination shows: a. He was evaluated on 9 November 1965 prior to possible administrative separation. He brought himself to the attention of his commanding officer by volunteering the fact that he had had homosexual experiences in the past, and was concerned lest he continue his practices and get in trouble in the Army. The details of his homosexual activities were documented in a U.S. Army Criminal Investigation Command (CID) report. Although this individual has a long history of homosexual activity, his anxiety and guilt concerning this problem are what motivated him to turn himself in. He recognized at the time his homosexual desires were getting stronger and as he stated in the CID report, he did indeed make another homosexual contact. b. Early in his life, the applicant's parents were divorced and the mother re­ married. He grew up with five brothers and three sisters, of which he was the oldest. He describes his father as being a very punitive person whom he feared greatly. He felt that his mother was extremely nice to him, and used to save him from his father's wrath. He left school in his freshman year of high school. He began his homosexual activities while in high school. c. He is of medium build with a good military appearance. He is oriented and there is no evidence of thought disorder. Although he has a long history of homosexual activity, he does not embrace homosexuality, and it is apparently more of a compulsive than pleasurable activity. He states that he has extremely good relationships with his mother and with other older women. With younger women he has a tendency to become disgusted and angry, particularly when there is a possibility or likelihood of a sexual relationship. At the present time, he has a girlfriend, of whom he is very fond. He states that he is fearful that if his attitudes do not change, he will end this much desired relationship due to his feeling of anger and disgust whenever it progresses sexually. It is clear that due to his abnormally strong emotional ties to his mother, he has difficulty viewing sex with a woman, as a pleasurable activity, free from feelings of guilt and disgust. He is motivated to solve this problem, and capable of considerable insight. It is felt that he is capable of success in dealing with this problem and feels he will avail himself of psychiatric aid when he returns to the civilian setting. d. He had no disqualifying mental defect nor disqualifying physical defect that warranted disposition through medical channels. His condition was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification. He was cleared psychiatrically for administrative separation under Army Regulation (AR) 635-89 (Personnel Separations – Homosexuality). 7. On 15 November 1965, the applicant was notified by his immediate commander that discharge action was being initiated against him for homosexuality under the provisions of AR 635-89. The immediate commander recommended an undesirable discharge. He stated: a. The applicant has demonstrated himself to be undesirable for Military Service. This is stated unequivocally. This individual does possess the intelligence and ability to soldier, but his mental aberration tor homosexuality precludes his effectiveness as a member of this unit and or the military community as a whole. He was assigned to A Company on 24 August 1965. He performed his duties in a superior manner and was, in fact, selected tor attendance at the Fourth U.S. Army NCO Academy. He was scheduled to report on 1 November 1965 and at that time he advised his chain of command that he was a homosexual. b. The applicant was referred to the Division Surgeon for psychiatric examination and conferred with the psychiatrist on 2 November 1965 and 10 November 1965. He personally spoke with the psychiatrist who felt that the applicant was a homosexual. This is also pointed out in the psychiatric evaluation, dated 10 November 1965. The CID report reflects that he has performed homosexual acts while in the Armed Forces by the applicant's own admission. c. The applicant's mental stability has deteriorated since his admission of homosexuality and it was necessary to impose punishment under Article 15 on 10 November 1965 for his willful disrespect toward an NCO. He is currently under restriction and is performing menial duties under direct supervision of the first sergeant as it would be illogical to allow him to perform responsible tasks in his state of mind. He should be returned to civilian status as undesirable for continued military service. 8. The applicant acknowledged receipt of the notification of his proposed discharge action. He waived his rights and indicated he did not desire counsel. He was advised of the basis for the contemplated separation action, the possible effects of an undesirable discharge, and of the procedures and rights available to him. He waived consideration of his case by a board of officers and elected not to submit a statement. He acknowledged he understood that an undesirable discharge may be issued to him and such discharge would be under other than honorable conditions, and as a result of such discharge, he could be deprived of many or all rights as a veteran under both federal and state laws and he could encounter substantial prejudice in civilian life. 9. On 19 November 1965, the applicant's immediate commander initiated separation action against the applicant in accordance with AR 635-89 by reason of homosexuality. He recommended an under other than honorable conditions discharge. On 22 November 1965, his intermediate commander recommended approval with an undesirable discharge. 10. On 23 November 1965, consistent with the chain of command's recommendations, the separation authority approved his discharge for homosexuality under the provisions of AR 635-89 and directed the issuance of an Undesirable Discharge Certificate. On 2 December 1965, the applicant was discharged accordingly. 11. The DD Form 214 he was issued confirms he was discharged by reason of homosexuality under the provisions of AR 635-89 with an under honorable conditions characterization of service. He completed a total of 4 months and 26 days of creditable active service during the referenced period. This form also shows he was assigned separation program number (SPN) 257 (unfitness – homosexual acts). REFERENCES: 1. AR 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality. This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts. The regulation states enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate: * Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses * Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I * Class I, homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 16 years) during military service 2. 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 (DRB's) 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 to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF * characterization of the service to honorable * the reentry eligibility (RE) code to an immediately-eligible-to-reenter category 3. 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 4. 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. It 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 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. DISCUSSION: 1. The evidence of record shows the applicant was discharged on 2 December 1965 under the provisions of AR 635-89 by reason of homosexuality with an under other than honorable conditions discharge after he admitted he was a homosexual and engaged in homosexual acts. 2. His discharge for homosexuality complied with the laws and regulations in effect at the time. The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time. 3. Nevertheless, the law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity. When appropriate, Soldiers separated due to homosexuality should now have their reason for discharge and characterizations of service changed. Given the absence of any misconduct or aggravating factors, it appears he now qualifies for re-characterization of his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017273 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017273 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2