BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160005889 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: 5 December 2017 DOCKET NUMBER: AR20160005889 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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: a. issuing him a new DD Form 214 for the period ending 21 July 1965, which shows: * he was discharged in the rank/grade of private first class/E-3 and his date of rank was 13 June 1963 * he was discharged under the authority of "Army Regulation 635-200, paragraph 5-3," by reason of "Secretarial Authority" * his service was characterized as "Honorable" * he was assigned separation code "JFF" and reentry code "1" b. issuing him a DD Form 256A (Honorable Discharge Certificate) for his period of service from 12 October 1962 to 21 July 1965. ______________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: 5 December 2017 DOCKET NUMBER: AR20160005889 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states he was discharged in 1965 for being a homosexual man. This service characterization has presented a long term hardship for him and is a source of great embarrassment. He served his country to the best of his ability, and wishes he would be granted a discharge that reflects the quality of his service. Now that Don't Ask, Don't Tell (DADT) has been repealed, he requests an upgrade to his discharge. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 July 1965. 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 on 12 October 1962. 3. The applicant's record contains a DA Form 24 (Service Record) that shows the highest grade he attained while serving was private first class/E-3, to which he was promoted on 13 June 1963. 4. On 3 May 1965, the applicant was referred by his unit physician for psychiatric evaluation due to his admitted homosexuality. He was psychiatrically cleared for appropriate command action. 5. A DA Form 19-24 (Statement), dated 5 May 1965, shows the applicant acknowledged during an interview with a criminal investigator that he had engaged in homosexual activity in the past. 6. On 10 May 1965, after completion of an investigation, the investigating officer recommended the applicant's discharge under the provisions of Army Regulation 635-89 (Personnel Separations - Homosexuality). 7. On 12 May 1965, the applicant was notified of his proposed discharge from the service under the provisions of Army Regulation 635-89. He waived his right to consideration of his case by a board of officers, and elected not to submit a statement on his own behalf. He further acknowledged: * he had been afforded the opportunity to be represented by counsel and declined to accept * if he were issued an undesirable discharge it would be under conditions other than honorable * he may be deprived of many rights and benefits as a veteran under both Federal and State law * he may encounter substantial prejudice in civilian life 8. On 14 May 1965, the applicant's commander recommended approval of his discharge under the provisions of Army Regulation 635-89 because of homosexual conduct. 9. On 14 June 1965, the approval authority approved the separation action and directed the applicant's discharge under the provisions of Army Regulation 635-89, with the issuance of an Undesirable Discharge Certificate. 10. The applicant was discharged on 21 July 1965 under the provisions of Army Regulation 635-89 because of homosexuality, and his service was characterized as under conditions other than honorable. His DD Form 214 shows he was assigned Separation Program Number (SPN) 257 (Unfitness - Homosexual Acts) and he was issued an Undesirable Discharge Certificate. REFERENCES: 1. Army Regulation 635-89, in effect at the time, governed the separation of Soldiers because of homosexuality. It stated personnel would be discharged under other than honorable conditions if the case fell within Class II, which consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I (homosexual acts involving a child under the age of 16) during military service. Characterization of service as under other than honorable conditions required the Soldier be reduced to the lowest enlisted grade. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service. The SPD code "JFF" specifies the narrative reason for discharge as Secretarial Authority. The authority for discharge under this SPD is paragraph 5-3 of Army Regulation 635-200. 3. 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, United States 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. 4. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests in these cases to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" with SPD Code "JFF") * characterization of the discharge to honorable * reentry (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 * there were no aggravating factors in the record, such as misconduct 6. 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. 7. 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 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. DISCUSSION: 1. The applicant’s 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 discharge and in accordance with the governing regulations in effect at the time. 2. Nevertheless, the law has since been changed, and current standards are now applied to previously-separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed. 3. The evidence supports correction of the applicant's record under the policy and guidance of the Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, which is referenced above. There does not appear to be any information in the available evidence that would be a barrier to recommending correction of the applicant's record to show he received an honorable discharge in the rank/grade of private first class/E-3 by reason of Secretarial authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005889 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005889 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2