IN THE CASE OF: BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002939 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: 26 September 2017 DOCKET NUMBER: AR20160002939 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 the applicant a new DD Form 214 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. IN THE CASE OF: BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002939 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 honorable conditions (general) discharge and correction to multiple entries on his DD Form 214 (Report of Separation from Active Duty), including his narrative reason for separation, separation program designator (SPD) code, and reenlistment (RE) code. 2. The applicant states his general discharge from the Army was erroneous because it resulted from policies and procedures that differ in material respects from those currently applied service-wide following the repeal of "Don't Ask, Don't Tell" (DADT). The sole reason for his discharge was "homosexual acts." The general discharge was unjust in light of his otherwise faithful service with no misconduct and should be upgraded to honorable. 3. The applicant provides a self-authored statement: a. He served in the U.S. Army from 25 June 1974 to 23 April 1976. He received an under honorable conditions (general) discharge. He joined the Army because his father had been in the Army and he too wanted to serve his country. He applied on 15 March 1974; his mother signed his application since he was only 17 years old. b. He did well in the Army before he was discharged. He was promoted to the rank of acting sergeant (SGT) and was a squad leader. He was awarded the National Defense Service Medal and was recognized for excelling with the M-16 rifle. He was liked and respected by the members of his squad and was friends with many of them. However, there was one member of his squad who was not given enough attention and submitted a statement to his commanding officer that he was homosexual. c. After he was accused of being homosexual, his SGT stripes were removed from his uniform and he was told by his commanding officer that he was a dishonor and disgrace to lead honorable men. He still remembers those words because of how they hurt him. He had served the Army and the members of his platoon honorably and received promotions a number of times. To be treated in that manner because of his sexual orientation is still painful to this day. d. The investigation into the homosexual allegation took approximately 90 days. While the investigation was ongoing, he was placed on kitchen duty and was forbidden to have any interaction with the men in his platoon. During those 90 days, he continued to live in the barracks and was severely abused by the men he lived with, the men who used to be his friends and members of his squad and platoon. He was verbally and physically assaulted and even received death threats. At one point, his captain recommended that he be put in the brig for his own protection. e. He was finally discharged on 23 April 1976. He knew the general discharge for homosexual acts would severely prejudice his ability to obtain employment and would be humiliating every time he applied for work. After his discharge, he immediately sought counsel to determine if there was any way he could apply for a discharge upgrade and was informed that he had no hope of receiving an upgrade. f. In 2009, he again sought the advice of a lawyer regarding a potential discharge upgrade but was told it would be a very difficult and likely unsuccessful process. It was not until the summer of 2015 that he consulted with a lawyer at a veterans' legal clinic and learned about the possibility of receiving a discharge upgrade because DADT had been repealed. g. The general discharge he received has been a continuous source of pain and shame for him over the past 39 years. He was so ashamed of his discharge papers that he chose not to seek employment when he was discharged from the Army in 1976 at the age of 19 years old. Instead, he started his own business, which he retired from in 2008. h. He submits his discharge upgrade petition because his discharge based on sexual orientation was unjust and he served his country honorably. A discharge upgrade to honorable will mean a great deal to him and give him some closure to a very painful chapter of his life. 4. The applicant provides a copy of his DD Form 4 (Enlistment Contract – Armed Forces of the United States), DA Form 2-1 (Personnel Qualification Record – Part II), and his DD Form 214 for the period ending 23 April 1976. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel states, in effect: a. The applicant's general discharge from the Army on 23 April 1976 is erroneous because it resulted from policies and procedures that differ in material respects from those currently applied following the repeal of DADT. His discharge should be upgraded to honorable based on the repeal of Title 10, United States Code (USC), section 654, more commonly known as DADT. b. Effective 20 September 2011, the Department of Defense (DOD) adopted a policy that prohibits the DOD from asking service members or applicants about their sexual orientation, mandating that all members be treated with dignity and respect. In the Under Secretary of Defense Memorandum repealing DADT, the DOD indicated that Service Discharge Review Boards (DRB) should normally grant requests to change the narrative reason for a discharge, requests to re-characterize the discharge to honorable, and/or requests to change the reentry code when the following conditions are met: the original discharge was based solely on DADT or a similar policy in place prior to the enactment of DADT, and there were no aggravating factors in the record, such as misconduct. c. The sole authority and reason cited for his general discharge from the Army is Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(7). At the time of his discharge, paragraph 13-5a(7) stated an individual is subject to separation for homosexual acts under this chapter for unfitness. Homosexual act means bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act. d. The regulation endorsed a general policy of discharging members of the Army determined to have performed homosexual acts unless the homosexual act was "apparently [an] isolated episode, stemming solely from immaturity, curiosity, or intoxication." The SPD he received "JLC" was the designator for homosexuality. e. The sole reason for the applicant's discharge from the Army was a member of his unit accused him of being homosexual. Only one authority and reason is listed for his general discharge, "homosexual acts." The only "remarks" listed in item 27 (Remarks) of his DD Form 214 are "Misconduct - homosexual acts." His DD Form 214 and remaining personnel file are void of any other reason that could have led to his discharge. His record reflects high marks for his service and does not identify any other cause which could have led to the discharge. Accordingly, the applicant has met the requirement that the sole reason for his discharge was "homosexual acts." f. There is no question that based on his record, the applicant's discharge is unjust and it is long past due for this injustice to be rectified. His record is devoid of any misconduct, drug abuse, or minor disciplinary infractions, and there is no record of him committing a serious offense. On the contrary, the record establishes that he faithfully served the Army and did so well. g. The applicant's general discharge, and the reason for it, altered the course of his life forever at the age of 19. It is grossly unjust that he would voluntarily join the Army at the age of 17 during the Vietnam War, willing to risk his life to defend this Country, only to have that same Country discharge him in a manner that would negatively impact him for the rest of his life. In an effort to rectify some of the harm and stigma that this discharge has caused him over the past 39 years, the ABCMR should upgrade his discharge to honorable and make the corresponding changes to his DD Form 214. h. The military has changed its policy on sexual orientation as well as its policy regarding the issuance of discharge characterizations. In light of these changes, it is grossly unjust for the applicant to be forced to retain a discharge character of anything less than honorable and an Undesirable Discharge Certificate. Based on the new guidance and pursuant to the new DOD policy, his narrative reason for separation should be changed to "Secretarial Authority" and his discharge characterization to honorable as an equitable relief in the interest of justice. In addition, his re-entry code should be changed to "immediately-eligible-to-reenter category" and "Misconduct – homosexual acts" should be removed from the "Remarks" section of his DD Form 214. 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 as a private (PV1)/E-1 on 25 June 1974 at the age of 17. He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. He was assigned to Company C, 2nd Battalion, 1st Infantry Regiment, Fort Lewis, WA, on 6 November 1974. He was promoted to the rank and grade of specialist four (SP4)/E-4 on 25 July 1975. 4. In an undated statement, a Soldier within Company C, 2nd Battalion, 1st Infantry Regiment, notified his chain of command of the following: a. On the evening of 12 December 1975, after coming back from a field training exercise, he and the applicant decided to throw a party. They rented a double room in a hotel for the party intended as a place for relaxing and drinking safely off-post. b. Several people were invited, and the party was open to all in 3rd Platoon. They did some very heavy drinking, but again they were indoors (he then named the military personnel and a spouse who were present). c. He stated he drank a bottle of tequila with several members and the applicant. He fell asleep on the couch in the living room with everybody still there and asleep. At about 0400 hours, he awoke and found himself on the bedroom bed and the applicant was performing a sexual act on him. The act was ended, he went to use the bathroom, and he went back asleep. They packed up and left in the morning. d. The applicant asked him if he had any feeling about what happened last night. He stated he was not out to burn him but he did tell him homosexuality was of no interest to him and that his directives and priorities were elsewhere. He emphasized the fact that he was in a very successful heterosexual relationship with his girlfriend for the last 5 years. They then no longer talked about the subject until he wrote the statement. e. He stated the applicant had been frank with him on many occasions discussing his goals and aspirations. In addition, the applicant stated he had affairs with several people in their platoon. He then named some possible members of the platoon who had knowledge of the applicant's homosexual activities. 5. The applicant's platoon leader and company commander interviewed members of the platoon on 29 January 1975 in reference to the Soldier's statement. Several members of the platoon admitted to consensual sexual encounters with the applicant. The applicant contended his act with the Soldier was consensual; however, the chain of command noted the Soldier contended the act was against his will and while he was asleep. The company commander noted that he intended to initiate an administrative discharge for the applicant under Army Regulation 635-200, chapter 13, to preclude further occurrences of homosexual behavior. 6. The applicant underwent a mental status evaluation on 20 February 1976. He was diagnosed with sexual orientation disturbance (homosexuality). He met the retention standards, was found qualified for separation, and was cleared for administrative separation in accordance with (IAW) Army Regulation 635-200, chapter 13. 7. The applicant's company commander formally notified him on 8 March 1975, of his intent to initiate separation action against him IAW Army Regulation 635-200, paragraph 13-5a(7), for unfitness, sexual orientation disturbance (homosexuality). 8. The applicant's entire separation packet is not available for review. However, his record contains memorandums that show his battalion commander recommended approval of the discharge request on 12 March 1976 and stated: "[The applicant's] attitude and standards of behavior are below those required by the military. All attempts to rehabilitate the man and all counseling sessions have failed to change the man's attitude and have not produced any positive results. Continued military service would not be in the best interest of the U.S. Army and would cause additional hardship in the company." 9. The separation authority approved the applicant's discharge on 16 April 1976, under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. 10. The applicant's DD Form 214 shows he was discharged on 23 April 1976, under the provisions of Army Regulation 635-200, paragraph 13-5a(7). His DD Form 214 further shows his SPD code as "JLC" (misconduct – homosexual acts), his RE code as "3," and that he was issued a General Discharge Certificate. 11. The applicant's record is void of evidence showing he was the subject of disciplinary actions during his military service. 12. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. A Soldier separated because of unsuitability was furnished either an honorable or general discharge certificate, as warranted by their military record. 2. The "Don't Ask, Don't Tell" (DADT) policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members concerning 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. 3. Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., AR 635-200, paragraph 5-3) and the SPD code to "JFF" (Secretarial Authority). It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 4. The memorandum also recognized that although Boards for Correction of Military/Navy Records 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 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. 5. Article 120 (Sex Crimes) under the Uniform Code of Military Justice (UCMJ) provides: a. Aggravated sexual assault as upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness: that the accused engaged in a sexual act with another person, who is of any age, and that person was substantially incapacitated; that the other person was substantially incapable of appraising the nature of the sexual act; that the other person was substantially incapable of declining participation in the sexual act; or that the other person was substantially incapable of communicating unwillingness to engage in the sexual act. b. Wrongful sexual contact as upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness: that the accused had sexual contact with another person; that the accused did so without that other person's permission; and that the accused had no legal justification or lawful authorization for that sexual contact. c. The minimum discharge if found guilty by a court-martial for an Article 120 violation is a dishonorable or bad conduct discharge. DISCUSSION: 1. The applicant requests an upgrade of his general discharge and corrections to his narrative reason for separation, SPD code and RE code. He contends homosexuality was the sole reason for his general discharge, which is erroneous because it is a result of policies and procedures that differ in material respects from those currently applied service-wide following the repeal of DADT. 2. The applicant enlisted in the Army at the age of 17. His record is void evidence of indiscipline until he reached the age of 19. 3. Evidence of record shows a fellow Soldier within the applicant's platoon reported to the chain of command that the applicant performed a sexual act on him while he was intoxicated and asleep. Through fact finding, the chain of command learned the applicant had consensual sexual contact with other male members of the unit. The applicant contends the Soldier reported him because he was not given enough attention as other members were within their squad. 4. The applicant acknowledged having homosexual contact and a desire to continually do so. Accordingly, his chain of command initiated separation action against him. 5. The complete facts and circumstances surrounding the applicant's discharge are not in the available records. However, his record contains sufficient evidence to support discharge proceedings in accordance with laws and regulations in effect at the time with no indication of procedural error. His record contains a DD Form 214 showing he was discharged on 23 April 1976 under the provisions of Army Regulation 635-200, paragraph 13-5a(7), by reason of unfitness (Misconduct – homosexual acts). He was issued a General Discharge Certificate, and assigned SPD "JLC," and RE Code "3." 6. The law has since 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 the authority and reason for discharge changed, and the RE code should normally be changed to an immediately-eligible-to-reenter category (i.e., RE code "1"). In addition, requests to re-characterize the discharge to honorable should normally be granted if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct. 7. The applicant's records reveal one incident of alleged misconduct (sexual contact without consent). There is no evidence he was charged for the offense or received punishment. Evidence of record shows the administrative separation proceedings were initiated as a result of the reporting of the alleged misconduct and the applicant's admitted homosexual behavior. The evidence does not show to what degree the alleged misconduct influenced the separation authority's decision to issue the applicant a General Discharge Certificate. 8. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018437 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002939 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2