ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  9 April 2019

	DOCKET NUMBER:  AR20160016931


APPLICANT REQUESTS:  Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 May 1982, to show he was separated with an honorable discharge, and to show he was separated with a different, more favorable separation code.

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)

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 he has been discriminated against because of the separation code shown on his DD Form 214.  He has a family now and is no longer homosexual.

3.  The applicant enlisted in the Regular Army on 6 October 1981.  

4.  The applicant received nonjudicial punishment on 25 November 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.

5.  While attending his advanced individual training, the applicant [along with three other Soldiers] was named in an investigation of a forced homosexual assault on a fellow Soldier that occurred on 20 January 1982.

	a.  In the victim's statement to the investigating agent (IA), he named the main assailant and the applicant as one of three other Soldiers involved.

	b.  In two sworn statements, the applicant denied participating in an act of oral sodomy in a statement to the IA; however, during a third interview, he admitted to having had fellatio performed on him.

6.  The applicant's unit initiated separation actions against him on 9 March 1982, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of homosexuality.

7.  After consulting with counsel on 7 April 1982, the applicant acknowledged the proposed separation actions, waived his rights, and elected not to submit a statement in his own behalf.

8.  The unit commander formally recommended the applicant's separation on 8 April 1982.

9.  The applicant was afforded a mental health evaluation on 6 May 1982.  During that evaluation, he denied taking part in homosexual activities prior to or during service.  He was cleared for any administrative action deemed appropriate by his command.

10.  The appropriate authority approved the applicant's discharge on 8 April 1982, under the provisions of Army Regulation 635-200, Chapter 15, and directed that he receive a General Discharge Certificate and that his service be characterized as under honorable conditions.

11.  The applicant was discharged on 25 May 1982.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 15, paragraph 15-4a, for engaging in, attempting to engage in, or soliciting of another to engage in homosexual acts.  His service characterization was under honorable conditions (general).  His DD Form 214 further shows a separation code of "JKC."

12.  The applicant was discharged due to the commission of an offense punishable under the UCMJ as in effect at the time.  Subsequent changes to have removed the specific reason of homosexuality form the regulations.

13.  U.S. Army Training and Doctrine Command (TRADOC) Regulation 350-6 (Initial Entry Training (IET) Policies and Administration) prohibits relationships in any form by Soldiers in an IET status and notes that violators are subject to punitive actions under the UCMJ, including separation if deemed appropriate.

14.  The Board could consider the applicant's personal statement and his contentions regarding his current family status in accordance with the published equity, injustice, or clemency determination guidance.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that partial relief was warranted.  The Board found that based upon the conduct which resulted in the discharge involving more than simply homosexual conduct, the Board recommended denying the portion of the application requesting an upgrade to the characterization.

However, based upon the totality of the circumstances in the case, the Board did find that a change in the narrative reason and separation code were warranted.  For that reason, the Board recommended granting those portions of the request.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 with the following corrections at:

* item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3"
* item 26 (Separation Code) to "JFF"
* item 28 (Narrative Reason for Separation) to General under honorable conditions "Secretarial Authority" 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his characterization of service.



	 
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 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.  Paragraph 5–3 (Secretarial plenary authority) states:

		(1)  Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.	

		(2)  Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers.  When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned.

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

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

* separation authority to "Army Regulation 635-200, paragraph 5-3"
* narrative reason for discharge to "Secretarial Authority" 
* Separation Program Designator (SPD) Code to "JFF"
* characterization of the discharge to honorable (if appropriate) 
* the 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 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.

4.  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 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3"
* item 26 (Separation Code) to "JFF"
* item 27 (Reentry Code) to "1"
* item 28 (Narrative Reason for Separation) to "Secretarial Authority"

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.

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  

6.  TRADOC Regulation 350-6 prescribes policies and procedures for the conduct of 
enlisted IET.  This regulation prohibits trainee relationships in any form and notes that violators are subject to punitive actions under the UCMJ, including separation if deemed appropriate.


ABCMR Record of Proceedings (cont)	 AR20160016931
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