ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20170014496


APPLICANT REQUESTS:  his character of service changed from under other than honorable discharge to an honorable or general under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Self-Authored Statement
* OMPF (Official Military Personnel File) (medical records, dental records, separation packet, emergency leave memorandum, and letter of reprimand)
* Letter from the National Personnel Center

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 he served in the U.S. Army from 28 February 1963 to 22 March 1965.  He was discharged under the authority Army Regulation (AR) 635-89 (Personnel Separations – Homosexuality) SPN (Separation Program Number) 257 for homosexuality.  The times have changed and he requests that his discharge be upgraded to honorable or general under honorable conditions.

	a.  His last duty assignment was at Camp Drake, Japan with discharge taking place via the US Army Personnel Center, Oakland, California.  While in the service of his country at the Communication-Center, at no time did he ever compromise or jeopardize security.  At the time he was questioned, and being young, impressionable, and under extreme stress, complied with polygraph testing, answered all questions, and felt he was not being properly represented.  After said compliance, the only word he received was that he was being discharged.

	b.  This was especially distressful as he had planned at that young age to have a military career, which was taken from him due to him being a homosexual.  This was something, with which we are certainly familiar, has only recently been recognized as not being an appropriate/applicable reason for discharge.  He has always felt the discharge unfair.

	c.  He lived a good and productive life, and had no police record, serve anonymously in areas of volunteerism, and had been a successful business owner. He was also dedicated to the field of nursing / health care, and as part of my service in that area, he had been employed also by the Shaughnessy Chaplain Rehabilitation, attached to Salem Hospital, Salem, Massachusetts.  Upon moving to Florida, he accepted a position at the Morton Plant Rehabilitation Center (also known as Bay Care), and was employed there from 1991 through 2011.

	d.  Again, at no time did he compromise the security of his position or his country.  Times have changed, of which he is especially thankful, and is eager to set that most disagreeable discharge to a proper ending, once and for all. Thank you for this opportunity to correct the travesty of him having been discharged from the service he was so dedicated to.

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

	a.  On 28 February 1963, he enlisted into the Regular Army (RA).

	b.  On 24 November 1964, the applicant received a letter of reprimand for a breech in security protocol.

	c.  On 1 December 1964, the applicant made an admission statement concerning himself involved in homosexual acts.

	d.  On 2 February 1965, his immediate commander notified him of his intent to initiate action to separate him under the provisions of Army Regulation (AR) 635-89 (Personnel Separations - Homosexuals), for being a class II homosexual.  The commander stated he received a report from the U.S. Army Criminal Investigation Command that the applicant was involved in homosexual activities.  He was counseled in regards to these allegations.  He then signed a sworn statement as to his actions and admitted to the allegations charged.  Due to his statement, he was sent to the psychiatric clinic for subsequent evaluation.  Upon recommendation of the psychiatrist this action to eliminate the applicant under the provisions of AR 635-89 is submitted.

	e.  On 2 February 1965, the applicant acknowledged receipt of the commander's intent to separate him.  He declined his right to counsel and waived his right to submit a statement in his own behalf.  He accepted the action to separate him under AR 635-89, and its effects; and acknowledged that he may be deprived of many rights and benefits as a veteran under both Federal and State law; and, that he may expect to incur substantial prejudice in civilian life.

	f.  On 25 February 1965, the applicant's chain of command recommended approval of the discharge action.  One of his commander recommended the applicant be given a general discharge.  The issuance of an honorable discharge to an individual who is to be separated from the service for homosexuality implies a lowered standard for honorable service and penalizes those members of the U.S. Army who have served their country faithfully and well.

	g.  On 4 March 1965, the separation authority approved the applicant’s discharge under the provisions of AR 635-89 with an under other than honorable conditions characterization of service.

	h.  On 22 March 1965, he was discharged from active duty with an under other than honorable conditions characterization of service under AR 635-89.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show he was discharged under the provisions of AR 635-89 with an under other than honorable conditions discharge.  He completed 2 years and 25 days of active service.

	i.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

4.  By regulation (AR 635-89), homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in this regulation is mandatory.  Homosexuals are unfit for military service because their presence impairs the morale and discipline of the Army, and homosexuality is a manifestation of a severe personality defect which appreciably limits the ability of such individuals to function effectively in society.

5.  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 could now have their reason for discharge and characterizations of service changed.  For such an upgrade to be warranted, 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.  By regulation (AR 635-89), when the investigation clearly indicates that an individual's case is in class II, the individual will be afforded the opportunity to be discharged from the service.  An individual who has served 3 or more years of a current unspecified-term enlistment may submit a resignation.

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Based upon the narrative reason for the applicant’s separation and a change in DoD guidance concerning homosexual conduct in the armed forces, the Board concluded that granting an upgrade in the characterization of service to Honorable, changing the Separation Authority, changing the narrative reason, changing the separation code, and changing the reentry (RE) code on the applicant’s DD Form 214 was appropriate.

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:
* characterization of service as “Honorable”
* separation authority as “AR 635-200”
* separation code as “JFF”
* narrative reason for separation as “Secretarial Authority”
* reentry (RE) code as “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.


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 (AR) 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.  Classes of homosexuality were defined as indicated below.  Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate. 

	a.  Class I homosexual acts were those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.

	b.  Class II homosexual acts were those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.  Class II also included all cases falling within Class I in which it was determined charges would not be preferred or, if charges were preferred, it was determined the charges would not be referred to a court-martial for trial.

	c.  Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses.

3.  The "Don't Ask, Don't Tell" 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 (DRB's) 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.  The memorandum above 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 a Separation Program Designator (SPD) code of JFF
* characterization of the service to honorable
* the reentry eligibility (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.  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 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.


ABCMR Record of Proceedings (cont)	 AR20170014496


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