BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160002147 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 BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160002147 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the Army Board for Correction of Military Records' (ABCMR) decision in Docket Number AC96-06406, dated 18 September 1996. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for the period ending 2 November 1992 showing in: * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reentry Code): 1 * item 28 (Narrative Reason for Separation): Secretarial Authority ______________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: 24 August 2017 DOCKET NUMBER: AR20160002147 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, in effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC96-06406, dated 18 September 1996. Specifically, he requests his narrative reason for separation be stricken from his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he never admitted to being homosexual and it has been held against him ever since he was discharged from the Army. He believes he was discriminated against based on his military job and the effect that others perceived he may had on their careers. 3. The applicant provides no additional evidence in support of his request. 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. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC96-06406 on 18 September 1996. 3. Although the applicant does not provide a new argument or evidence, the repeal of Title 10, U.S. Code, section 654 (commonly referred to as Don't Ask, Don't Tell (DADT)), allows correction to service members records if they were discharged under DADT or prior policies. Based on the change in law and subsequent policy, his request warrants consideration. 4. The applicant enlisted in the Regular Army on 5 March 1991. After completing his initial entry training, he was awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist). He was assigned to the Federal Republic of Germany as his first duty assignment and was promoted to the rank/grade of private first class (PFC)/E-3 on 5 October 1991. 5. A DA Form 2823 (Sworn Statement), dated 21 May 1992, shows a Specialist (SPC) J.B., while visiting another Soldier's apartment, witnessed two individuals engaging in sexual intercourse (one later identified as the applicant). This statement was included in a U.S. Army Criminal Investigation Command (CID) investigation. 6. A DA Form 2823, dated 21 May 1992, shows SPC R.C., the occupant of the apartment that he shared with the other individual involved with the applicant, did not witness the incident but provided information as to the identity of the individuals involved and the applicant leaving his roommate's room. This statement was also included in the CID investigation. 7. A DA Form 2823, dated 21 May 1992, shows the other individual allegedly involved in the homosexual act indicated that he and the applicant had engaged in sexual intercourse on the day prior to the reported incident. On 5 June 1992, in a subsequent sworn statement, the other individual denied the information he provided on 21 May 1992, stating he had been tricked by the CID agent asking the questions. These statements were included in the CID investigation. 8. On 23 June 1992, the applicant provided a statement in which he denied any homosexual acts or inclinations. 9. The applicant accepted non-judicial punishment (NJP) on 26 June 1992, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for committing sodomy (with another Soldier not in his unit) on or about 16 May 1992. His imposed punishment was reduction to the grade of private (PV2), forfeiture of $205.00, and extra duty and restriction for 14 days. On 29 June 1992, he appealed his punishment and on 14 July 1992, the appeal authority denied his appeal. 10. DA Form 3822-R (Report of Mental Status Evaluation), dated 16 July 1992, shows he was fully alert with normal behavior, had clear thinking process and normal thought content. The medical professional deemed him to be mentally responsible with the mental capacity to understand and participate in any proceedings deemed appropriate by his chain of command. 11. On 4 August 1992, the final CID report indicated, in pertinent part, there was sufficient probable cause to believe the applicant and the other individual committed the offense of sodomy. It further stated that both individuals involved in the incident received NJP. 12. On 1 October 1992, his immediate commander notified him of his intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, for homosexuality. The specific reason for the discharge was the applicant's engagement in homosexual activity. He further discussed his entitlements and rights and recommended a general discharge. 13. The applicant acknowledged receipt of the commander's notification on the same day, and consulted with legal counsel. He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he 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 him. The applicant elected not to submit a statement in his own behalf and requested an administrative separation board to consider his case. He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 14. Subsequent to consultation with legal counsel, the applicant altered his acknowledgement indicating he voluntarily waived consideration of his case by an administrative separation board contingent upon receiving an honorable characterization of service. 15. On 20 October 1992, the applicant’s immediate commander recommended that he be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexuality. His intermediate commander further recommended his request for conditional waiver be approved with the issuance of an honorable discharge. 16. On 22 October 1992, the separation authority approved the applicant's conditional waiver request and directed his discharge under the provisions of Army Regulation 635-200, chapter 15, for homosexuality, with the issuance of an honorable discharge. He further directed the applicant not be transferred to the Individual Ready Reserve. 17. The applicant was discharged on 2 November 1992. His DD Form 214 he was issued confirms the following entries: * item 24 (Character of Service): Honorable * item 25 (Separation Authority): Army Regulation 600-200, paragraph 15-3b * item 26 (Separation Code): JRB * item 27 (Reentry Code): 3 * item 28 (Narrative Reason for Separation): Admission of Homosexuality/Bisexuality 18. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 5 February 1996. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, chapter 15 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. 2. 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 of 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. 3. The 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 (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies. 4. This memorandum states that, effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * separation program designator code to "JFF" * character of service to honorable, if warranted * RE code to an immediately-eligible-to-reenter category DISCUSSION: 1. The applicant contends he never admitted to being homosexual and it has been held against him ever since his discharge from the Army. He believes he was discriminated against based on his military job and the effect that others perceived that he may have in regards to their careers. 2. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. He provides no evidence and his record does not contain any that shows he was discriminated against. 3. Although the applicant's alleged sexual partner later recanted his admission that the two had a homosexual encounter, his chain of command administered NJP against him for the offense of sodomy based on a CID investigation and other sworn statements. He continued to profess his innocence and that he was not a homosexual and appealed the NJP decision to no avail. Subsequently, he was recommended for an administrative discharge. After consultation with his legal counsel, in order to lessen the effects of encountering prejudice in civilian life, he requested a conditional waiver to receive an honorable discharge. 4. The applicant was discharged under the provisions of Army Regulation 635-200, chapter 15, by reason of homosexuality, with an honorable discharge. He was assigned a separation code of "JRB" and an RE code of "3." His discharge proceedings were conducted in accordance with law and regulations in effect at the time and his rights were protected throughout the discharge process. 5. 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 for homosexuality should now have their reason for discharge, separation code, and RE code changed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002147 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002147 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2