BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160006100 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 26 July 1967 and issuing him a new DD Form 214 for that period showing he was honorably discharged by reason of Secretarial Authority and assigned a separation program designator code of JFF and a reentry eligibility 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: 8 February 2018 DOCKET NUMBER: AR20160006100 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :SWF :MWM :RCH GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160006100 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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his character of service as general under honorable conditions in lieu of under other than honorable conditions (UOTHC). 2. The applicant states there have been several policy changes since he enlisted in the Army. Under current standards, his discharge would not have been UOTHC due to the repeal of "Don't Ask, Don't Tell (DADT)." He just wants to be respected the same as any other veteran. 3. The applicant provides 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 on 26 July 1967. 3. A Statement by Accused or Suspect Person, dated 23 October 1967, shows the applicant was questioned by a 3d Military Police Group (Criminal Investigation) interrogator about acts of sodomy of which he was accused or suspected. He indicated he did not want counsel and he consented to being questioned. The document contains a sworn statement made by the applicant wherein he detailed several acts of sodomy he committed prior to and during his military service. He detailed sexual encounters with another male Soldier, Private G____, while in advanced individual training and stated he wanted to stay in the Army, but he thought it would be better if he got out now that Private G____ had told everything. 4. A DA Form 2800 (Criminal Investigation Division Report of Investigation), dated 26 January 1968, states an investigation disclosed the applicant and Private G____ engaged in mutual anal sodomy during the period 16 to 20 October 1967 at Fort Gordon, GA, and that both Soldiers had engaged in such acts prior to their military service. The report further states no U.S. Government or private property was lost, stolen, or recovered in this investigation. No derogatory information on either Soldier was reflected in the records of the U.S. Army Investigative Records Repository. Private G____ was on duty with his assigned organization at the time of the report while the applicant was dropped from the rolls on 12 December 1967 and returned to military control on 16 January 1968. 5. Headquarters, Fort McPherson Troop Command, Special Court-Martial Order Number 308, dated 4 March 1968, shows the applicant was arraigned and tried before a special court-martial which convened at Fort McPherson, GA. He was charged with and found guilty of being absent without leave (AWOL) from his advanced individual training unit from on or about 1 November 1967 until on or about 16 January 1968. He was sentenced to confinement at hard labor for 6 months and forfeiture of $63.00 per month for 6 months. 6. A certificate from the U.S. Army Hospital, Fort McPherson, GA, dated 19 March 1968, shows the applicant was examined on that date and diagnosed with homosexuality and sociopathic personality. The applicant admitted to homosexuality and stated he joined the Army hoping this could cure him of his homosexual tendencies. He found that it hadn't cured him and he could not adapt to Army life. He had been AWOL and admitted having homosexual experiences. He was completely unmotivated for further rehabilitative efforts. He was recommended for separation from military service under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuals) as being unfit. 7. On 1 April 1968, his immediate commander notified him of his recommended discharge from the Army based on unfitness under the provisions of Army Regulation 635-89. He was advised of his right to present his case before a board of officers, submit statements in his own behalf, and be represented by counsel. On 2 April 1968, he acknowledged receipt of the notification. He waived consideration of his case by a board of officers, did not submit statements in his own behalf, and waived representation by military counsel. 8. On 22 April 1968, his brigade commander approved his discharge under the provisions of Army Regulation 635-89, separation program number (SPN) 257 (unfitness, homosexual acts) and directed issuance of an Undesirable Discharge Certificate. 9. His DD Form 214 shows he was discharged UOTHC on 26 July 1967 under the provisions of Army Regulation 635-89 and assigned SPN code 257 (unfitness, homosexual acts). He completed 3 months and 15 days of net active service during this period. His reenlistment code is shown as 4. REFERENCES: 1. Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. Homosexuals were divided into three classes. Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service. Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively. 2. 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 and Service Boards for Correction of Military/Naval Records to follow when taking action on applications from former service members discharged under DADT or prior policies. 3. The memorandum states that effective 20 September 2011, Service Discharge Review Boards should normally grant requests in these cases to change the narrative reason for discharge to Secretarial Authority, the separation program designator code to JFF, and the reentry eligibility (RE) code to an immediately-eligible-to-reenter category. 4. 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 5. 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 Service Boards for Correction of Military/Naval Records have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the Service Discharge Review Boards, 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 was 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. 7. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons with or without prior service into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army RE Codes) provides definitions of RE codes and shows RE code 1 applies to persons completing their terms of active service who are considered fully qualified to reenter military service if all other criteria are met. 8. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a.  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.  A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant's discharge proceedings for homosexuality were conducted in accordance with the law and regulations in effect at the time. The characterization of his service, separation authority, and SPN shown on his DD Form 214 were appropriate and in accordance with the governing regulations then in effect. 2. 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 reasons for discharge, separation program designator codes, RE codes, and service characterizations changed if the discharge was based solely on DADT and there were no aggravating factors in the record, such as misconduct. 3. While the evidence of record shows the applicant was found guilty by a special court-martial of being AWOL, this misconduct transpired directly subsequent to him providing a sworn statement in response to a Criminal Investigation Division interrogation pertaining to his homosexuality and was presumably in response to the investigation. There is no other evidence of disciplinary action in the applicant's records. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006100 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006100 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2