BOARD DATE: 9 November 2017 DOCKET NUMBER: AR20160003832 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 his DD Form 214 for the period ending 14 December 1976 and issuing him a new DD Form 214 showing he was discharged with an honorable characterization of service by reason of Secretarial Authority (Paragraph 5-3, AR 635-200) with a separation code of "JFF" and a reentry code of "1." 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: 9 November 2017 DOCKET NUMBER: AR20160003832 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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: 9 November 2017 DOCKET NUMBER: AR20160003832 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 the narrative reason for separation shown on his DD Form 214 (Report of Separation from Active Duty) from “Personality Disorder” to “Homosexuality.” 2. The applicant states he was discharged because he was homosexual. He was advised at the time it would be better to accept a personality disorder reason for discharge versus being a homosexual. The diagnosis was a complete fabrication and he would like this classification removed from his record. He also requests the authority and reason for his discharge be removed to reflect he was discharged for being homosexual. His discharge was not provoked by an incident. Rather, it was driven by suspicion, questioning, and his admission of being homosexual after legal counseling. Although his discharge was done in accordance with regulations, attitudes and beliefs at the time, the Services and society have changed to realize this as an injustice. He is homosexual and does not have a character, behavior or personality disorder. Furthermore, he does not have any derogatory or disciplinary information in his Army service record for the period 17 May 1972 to 14 December 1976. In fact, he has a number of commendatory letters and recommendations in his record. 3. The applicant provides no additional evidence. 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 17 May 1972 and he held military occupational specialties (MOS) 91B (Medical Specialist) and 71G (Medical Records Specialist). He was honorably discharged on 29 April 1974 for immediate reenlistment. 3. His DD Form 214 for this period of service shows he completed 1 year, 11 months, and 13 days of creditable active service of which 1 year, 5 months, and 9 days was foreign service in Germany. His DD Form 214 also shows he was awarded or authorized: * National Defense Service Medal * Expert Field Medical Badge 4. He reenlisted in the RA on 30 April 1974 and he held MOS 91G (Social Work Psychology Specialist) and 91B. 5. DA Form 3822-R (Report of Mental Status Evaluation) shows he underwent a mental status evaluation on 4 October 1976. The remarks block of this form states “due to the severity of the subject’s condition, it is strongly recommended that he be expeditiously separated from the military service at his present duty station under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.” His diagnosis is listed as: * personality disorder, passive-dependent personality, chronic, severe, manifested by psychosexual role confusion * lack of physical and emotional stamina * low self-esteem * social instability 6. On 12 October 1976, the applicant’s immediate commander notified him that he was initiating action to separate him under the provisions of AR 635-200, paragraph 13-5(b)(2) (Unsuitability) of AR 635-200. He cited character and behavior disorders as the basis for the proposed separation action. 7. Following the notification, the applicant consulted with legal counsel and acknowledged receipt of the notification of separation action. His counsel advised him of the basis for the contemplated separation and its effects, the rights available to him and the effect of any action taken by him waiving his rights. 8. Following consultation with legal counsel, he elected not to make a statement on in his own behalf. He also elected, on the condition he receive an honorable discharge, to waive his right to have his case considered by a board of officers, to make a personal appearance before a board of officers, and to further representation by legal counsel. 9. On 2 December 1976, the separation authority approved the applicant's discharge under the provisions of paragraph 13-5(b)(2) of AR 635-200 by reason of unsuitability. The separation authority also approved waiver of the rehabilitation requirements and directed he be issued an Honorable Discharge Certificate. 10. The applicant was honorably discharged on 14 December 1976. He served 2 years, 7 months, and 15 days of creditable active service of which 2 years and 6 days was foreign service in Germany. His DD Form 214 for this period shows in: a. Item 9c (Authority and Reason), he was separated under the provisions of paragraph 13-5(b)(2), AR 635-200, with Separation Program Designator (SPD) code "JMB.” b. Item 10 (Reenlistment Code), "RE 3." b. Item 27 (Remarks), the entry “Unsuitability – Personality Disorders.” 11. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge processing within that board's 15-year statute of limitations. 12. On 4 October 2017, the Army Review Boards Agency psychologist rendered an advisory opinion in this case. The psychologist stated: a. Some of the applicant’s paper service treatment records were available for review from the National Personnel Records Center at the National Archives and Records Administration. The applicant had a separation Mental Status Examination (MSE) on 4 October 1976 that alleged he had a “passive-dependent personality, chronic, severe, manifested by psychosexual role confusion.” b. Limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer with a 90% service-connected VA disability rating. He had no behavioral health diagnoses on his VA problem lists. None of his 120 outpatient visits, which appear to have begun in 2009, were for behavioral health problems. The applicant is contending he was discharged in 1976 for being a gay man. At the time of his service, homosexuality was still viewed as a mental illness. The language used in his separation MSE is what would be expected for that time. Claims of lack of stamina and weakness based on his personality and sexual predilections are incongruous with his accomplishments (he was an E-5 with less than 4 years of service at promotion) and was a “social work/psychology specialist.” c. Does the available record reasonably support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant’s military service? No. Did this condition(s) fail medical retention standards in accordance with (IAW) AR (AR) 40-501 (Standard of Medical Fitness), warranting a separation through medical channels? No. In accordance with Title 10, U.S. Code, section 1177 (signed into law on 28 October 2009), was a Behavioral Health evaluation conducted prior to the administration separation of the Applicant? Yes. The examination found him unsuitable; however, in the reviewing psychologist's professional judgment, the applicant’s unsuitability for continued service depended on a view accepted at the applicant’s discharge that homosexuality was pathological. The view that homosexuality is pathological has since been rejected by the American Psychiatric Association, the American Psychological Association, and the Department of Defense. d. The applicant met medical retention standards in accordance with chapter 3 of AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. The applicant’s medical conditions were considered during medical separation processing. A review of the available documentation found evidence of a diagnosis of a now rejected diagnosis. The evidence supports a change to the reason for the discharge in this case, as the basis for the finding of unsuitability is no longer accepted, as being gay is now viewed as a developmentally normal outcome for a minority of children. 13. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 prescribes the policy for the administrative separation of enlisted personnel. a. Paragraph 5-3, currently in effect, provides for separation under Secretarial plenary authority. It is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. b. Paragraph 13-5b(2), in effect at the time, provided for separation of members for unsuitability due to personality disorders (changed from “character and behavior disorders” effective 30 March 1976). It states, as determined by medical authority, personality disorders and disorders of intelligence as suggested by various symptoms as enuresis or somnambulism, except for combat exhaustion and other acute situational maladjustments, when such disorders are chronic and recalcitrant to attempts at rehabilitation and interfere with the serviceman’s ability to adequately perform his duties. 2. AR 635-5-1 (Separation Program Designator Codes), in effect at the time, stated that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code "JMB" was the correct code for Soldiers separating under paragraph 13-5b(2) of AR 635-200 by reason of unsuitability – personality disorder. 3. 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 about 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. 4. 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 (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. 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 the SPD code of JFF) * characterization of service to honorable * the RE code to an immediately-eligible-to-reenter category 5. 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 and there were no aggravating factors in the record, such as misconduct. 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. 6. 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 those 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. 7. AR 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve. Table 3-1 included a list of the RA RE codes. RE codes are numbered 1, 3, and 4. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted * RE-4 applies to Soldiers ineligible for reentry DISCUSSION: 1. The evidence of record shows the applicant underwent a mental status evaluation which resulted in him being diagnosed with several disorders, to include a personality disorder. Accordingly, his chain of command initiated and approved his discharge under AR 635-200, paragraph 13-5(b)(2), with a service characterization of honorable. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. His authority and reason were assigned based on the fact that he was discharged under the provisions of paragraph 13-5(b)(2) of AR 635-200. Absent the personality disorder, it appears there was no fundamental reason to process him for discharge. The narrative reason for separation for that paragraph is "personality disorder" and the SPD code associated with this reason for discharge is JMB, which is listed on his DD Form 214 ending 14 December 1976. 3. The medical review of the applicant's case concluded that, based on the documentation available for review at this time, the applicant met medical retention standards in accordance with chapter 3, of AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. A review of the available documentation found evidence of a diagnosis of a now rejected diagnosis. The evidence supports a change to the reason for the discharge in this case, as the basis for the finding of unsuitability is no longer accepted. 4. The law regarding the discharge of Army personnel for homosexuality has since been changed. 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, when applicable, characterization of service changed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003832 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2