ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20160016283


APPLICANT REQUESTS:  Her under honorable conditions (general) discharge be 
upgraded to an honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Letter of Commendation, dated 3 November 1983 
*	Orders 59-11, issued by Headquarters, U.S. Army Training Center and Fort Dix, 
Fort Dix, NJ on 28 February 1984
*	Letter of Commendation, dated 13 January 1984
*	Certificate of Achievement, dated 13 January 1984
*	DA Form 87 (Certificate of Training), Unit Armorer's Maintenance Course
*	DA Form 4980-18 (Army Achievement Medal (AAM) Certificate)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 8 April 1985

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 her military record reflects she was an exceptional Soldier, she 
did her job well, and she was respected by her peers.  She wants to be proud of her 
service and to be able to show her son she made a difference.

3.  The applicant enlisted in the Regular Army on 18 January 1983.

4.  The applicant received two letters of commendation: one for her performance as a 
part of a funeral firing squad and one for being chosen as the Cadre of the Cycle.

5.  The applicant was awarded an AAM for her performance of duties between 
1 December 1983 and 3 March 1984.

6.  The applicant submitted a statement on 13 February 1985, wherein she indicated 
she engaged in homosexual activities and was homosexual by choice.

7.  The applicant was afforded a mental status evaluation.  It was the opinion of the 
attending physician that she was sincere in her statements about her sexual orientation.  
She was cleared for administrative action deemed appropriate by her command.

8.  The applicant's unit commander notified the applicant on 3 March 1985 that he was 
initiating actions to separate her from service under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of  
homosexuality.  

9.  The applicant acknowledged receipt of the proposed separation memorandum and 
declined counsel and elected not to submit a statement in her own behalf.

10.  The unit commander forwarded the formal recommendation for discharge and 
recommended she receive a general discharge.

11.  The separation authority approved the applicant's discharge on 28 March 1985, 
under the provisions of Army Regulation 635-200, Chapter 15, for homosexuality and 
directed she receive a general discharge.

12.  The applicant was discharged on 12 July 1974.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200, 
Chapter 15, and her service was characterized as under honorable conditions (general).  
The DD Form 214 also shows:

*	separation in the rank/grade of specialist/E-4
*	2 years, 2 months, and 21 days of net service this period
*	award of an AAM
*	no lost time 

13.  The available record contains no indication of any derogatory comments or 
misconduct save her admission of homosexuality.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there was 
sufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The Board agreed the applicant was discharged only because of sexuality; 
therefore, an upgrade is recommended based on today’s standards.
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 issuing the applicant a 
new DD Form 214 for the period ending 12 July 1974 showing in:

*	item 24 (Characterization of Service):  Honorable
*	item 25 (Separation Authority):  Army Regulation 635-200, paragraph 5-3
*	item 26 (Separation Code):  JFF
*	item 27 (Reentry Code):  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.


ADMINISTRATIVE NOTE(S):

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 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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

   a.  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.  Paragraph 3-7b provides that 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Chapter 15, in effect at the time, prescribed the authority, criteria, and procedures 
for the disposition of military personnel who are homosexuals and military personnel 
who engage in homosexual acts, or are alleged to have engaged in such acts.  It 
provided that personnel who voluntarily engaged in homosexual acts, irrespective of 
sex, would not be permitted to serve in the Army in any capacity.  Members who 
engaged in homosexual acts, even though they were not homosexuals within the 
meaning of this regulation, were considered to be unfit for military service because their 
presence was deemed an impairment to the morale and discipline of the Army.

3.  The Don't Ask, Don't Tell Repeal Act of 2010 (H.R. 2965, S. 4023) established a 
process for ending the DADT policy (10 U.S.C. Section 654), thus allowing gay, lesbian, 
and bisexual people to serve openly in the U.S. Armed Forces.  It ended the policy in 
place since 1993 that allowed them to serve only if they kept their sexual orientation 
secret and the military did not learn of their sexual orientation.

4.  The 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, USC), 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.

	a.  The memorandum provides that effective 20 September 2011, Service DRBs 
should normally grant requests, in these cases, to change the:

*	characterization of the discharge to honorable (if appropriate) 
*	separation authority to "Army Regulation 635-200, paragraph 5-3" 
*	narrative reason for discharge to "Secretarial Authority" 
*	separation code to "JFF"
*	reentry (RE) code to an immediately-eligible-to-reenter category

	b.  For the above corrections 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 or 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 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 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.  Based in part on the above memorandum, the specific regulations for homosexual 
separations were removal and a change of reason for separation was directed if there 
are no aggravating factors.  If the service member had admitted to homosexual 
tendencies and there is no evidence that there was any homosexual activity or other 
aggravating factors, their DD Form 214 was to be corrected at:

*	item 24 (Character of Service) to "Honorable"
*	item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3"
*	item 26 (Separation Code) to "JFF"
*	item 27 (Reentry (RE) Code) to "1"
*	item 28 (Narrative Reason for Separation) to "Secretarial Authority"

6.  It further directed that the DD Form 214 be reissued, in lieu of the DD Form 215 
(Correction of the DD Form 214), to avoid a continued record of the homosexual 
separation.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016283
	
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