ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:
									
                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013685


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge and his narrative reason for separation be changed to "Secretarial Authority." 

APPLICANT'S SUPPORTING DOCUMENTS (THROUGH COUNSEL) CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record)
* Legal Counsel, letter with exhibits:

* A – Applicant’s legal name change order
* B – DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 13 October 1961
* C – Discharge packet (listed as Medical Recommendation of Separation)
* D – Under Secretary of Defense "Don’t Ask, Don’t Tell (DADT)" Memorandum
* E – Applicant’s Affidavit 
* F – Applicant’s counselor of the year award

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states through counsel:

a. Exhibit F (Applicant’s Affidavit), shows that the applicant’s name is now X___ 
X___ but was X___ X__ during his service.  He was discharged for latent homosexuality in 1961, which is not an appropriate grounds for discharge.  He now seeks to have his general discharge upgraded and to have the narrative reason changed to "Secretarial Authority."  The repeal of DADT rendered his discharge unjust.  The applicant’s request for review is untimely; however, review is in the interests of justice based on the merits of the arguments and the way in which he was discharged.

b. His DD Form 214 indicates he entered the Army on 6 January 1961.  In 
September 1961, two other Soldiers accused of committing homosexual acts while in the service, then a violation of Article 125 of the Uniform Code of Military Justice (UCMJ), accused him of also committing homosexual acts.  Army security threatened him with dishonorable discharge and prison; fear of public humiliation and incarceration caused him to experience suicidal ideations and he threatened to kill himself.  He attempted suicide on two occasions.  Under pressure from a commanding officer, he admitted that he was gay but denied having committed any homosexual acts while in the service.  He was administratively separated for latent homosexuality under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuals), effective 13 October 1961.  Because of the threats of imprisonment and dishonorable discharge, as well as the harshness with which Army members treated him during the investigation into his sexuality, he felt completely humiliated and incorrectly believed until late 2015 that his general discharge rendered him ineligible for all veteran's benefits.  He went so far as to avoid social events organized for veterans, despite having married a fellow veteran and having many friends who also served.

c. He first became aware that his record identified him as a homosexual in 1962, 
which is when he first saw his DD Form 214.  He had to re-register with the draft, and his employer's wife, who was on the draft board, consequently saw his DD Form 214.  She reacted negatively to seeing that he was discharged for homosexuality and he suffered emotional trauma from the event.  He avoided disclosing his military service to subsequent employers because he feared that if they saw the indication of his homosexuality on his DD Form 214, he would be fired.

d. In 1964 or 1965, he approached a veteran's aid group for help in contesting his 
discharge status but was rebuffed, because homosexuality remained grounds for discharge from the Army.  Since that time, however, Army policy has changed to indicate that neither homosexuality nor the admission of homosexuality can justify a discharge from service or a character of service less than honorable.  These changes to military policy were concluded on 20 September 2011, with the repeal of Title 10, Section 654, commonly known as DADT.  He did not become aware that he could pursue a discharge upgrade until he read about people successfully doing so after the change in policy.  Furthermore, he was not able to pursue his discharge appeal earlier because of his struggle with cancer.  His current discharge status is a general discharge, so there is a presumption that there were no aggravating factors besides his homosexuality.  He went absent without leave (AWOL) for three days and was fined $25 for violation of a consequent restriction, but he was told that the basis for his discharge was his homosexuality rather than his AWOL.  All of the relevant documents base the discharge on his homosexuality.

   e. The applicant’s two conduct violations involved alcohol.  He went AWOL for three days after becoming intoxicated.  He soon realized he had made "a very bad choice" and returned to base to tum himself in.  His punishment was a thirty-day restriction to the company area, which he violated in order to go and drink at an enlisted men's club.  He recognized that alcohol had a pernicious effect on him.  He got sober and has abstained from alcohol since 1981.  Other than these two violations, his service record was meritorious.  He received a service rating of "Excellent" on his first two conduct and efficiency ratings.  Had he not been discharged for latent homosexuality, he would have continued to serve, and he hoped to become a psychologist in a military hospital.

   f. The applicant has led an exemplary life since his discharge.  In 1966, he took a job with General Motors Corporation, remaining with the company until he retired in 1993.  During his last twelve years at General Motors, he volunteered as a drug and alcohol counselor in the company's Employee Assistance Program, helping those who struggled with alcoholism as he himself had; he also volunteered with Glenbeigh, a hospital specialization in substance abuse rehabilitation.  He received a number of awards for his service, including being named counselor of the year for 1988 by the Northeastern Ohio Regional Council on Alcoholism, Inc.  From 1968 to 1972, he served as an elected union representative to the United Auto Workers.  He was appointed as an administrative assistant to the United Auto Workers until around 2000.

   g. Based on his discharge for homosexual conduct and the repeal of DADT, he respectfully requests the Board to review his records and to change the narrative reason to Secretarial Authority and re-categorize his service as honorable.  

3.  A review of the applicant’s service record shows:

a. He enlisted in the Regular Army on 6 January 1961.

   b. DA Form 24 (Service Record) shows he went AWOL from on or about 14 May 1961 to 16 May 1961.

   c. DA Form 458 (Charge Sheet) shows he was charged with violating UCMJ, Article 134, for violating restriction to the company area, 31 May 1961.

   d. DA Form 26 (Record of Court Martial) shows that he was convicted on 31 May 1961 by a Summary Court-Martial of violating his commander’s-imposed restriction for going AWOL, the sentence was adjudged and approved on 1 June 1961.

   e. His commanding officer recommended elimination form the military service under the provisions of Army Regulation 635-89 on 5 September 1961.  Subsequent commanders approved this request.

   f. The applicant signed a statement indicating he did not desire military or civilian counsel, he waived a hearing before a board, and did not desire to make a statement on his own behalf.

   g. Standard Form 88 (Report of Medical Examination) separation examination shows he was diagnosed:  “sexual deviant, homosexuality, Latent Class III, Line of Duty: No, Existed Prior to Service.”

h. The separation authority approved the request for discharge on 2 October 1961.

   i. Special Orders Number 204, ordered his discharge with general under honorable conditions effective 13 October 1961.

   j. He was discharged from active duty on 13 October 1961, his DD Form 214 shows:

* Item 11c (Reason and Authority), as Army Regulation 635-209, Separation Program Number (SPN) 256
* Item 13a (Character of Service) Under Honorable Conditions
* Item 24 (Statement of Service) 9 months and 5 days of total active service
* Item 32 (Remarks) 3 days lost time from 14 May 1961 thru 16 May 1961
* Reenlistment (RE) Code listed above Item 1 (Last Name, First Name, Middle Name) on the top left of the form is RE-4 – Not eligible for reenlistment

4.  Under Secretary of Defense (Personnel and Readiness) memorandum stated effective 20 September 2011, Service review boards should normally grant requests, in these cases, to change the narrative reason for discharge (the change should be to "Secretarial Authority" (SPD Code "JFF"), the characterization of the discharge to honorable, and the reentry code to an immediately-eligible-to-reenter category.  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

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, to include the statements of the applicant, the Board determined, based upon the reason for the administrative separation and current regulatory guidance, a change in the characterization of service to Honorable was warranted.  Additionally, for the same reason, the Board recommended that the narrative reason for separation be changed to “JFF, Secretarial Authority”.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 reissuing the applicant a DD Form 214 showing his characterization of service as Honorable and the narrative reason for discharge be changed to “JFF, Secretarial Authority” with an effective date of 13 October 1961.

SIGNATURE:

				 
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.

ADMINSTRATIVE NOTES: 

Not Applicable



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  

3.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribe the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states the separation document is a synopsis of the Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

4.  Army Regulation 635-89, in effect at the time, set forth the basic authority for the separation of personnel for homosexuality.  This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts, or were alleged to have engaged in such acts.  

5.  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 “Don't Ask, Don't Tell" (DADT) or prior policies.

	a.  The memorandum provides 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" (SPD Code "JFF")
* characterization of the discharge to honorable
* the reentry code to an immediately-eligible-to-reenter category

	b.  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

	c.  The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable discharge of general discharge should normally be considered to indicate the absence of aggravating factors.

	d.  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.


ABCMR Record of Proceedings (cont)	AR20160013685
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