ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 October 2019

	DOCKET NUMBER:  AR20160018520


APPLICANT REQUESTS:  correction of her DD Form 214 (Certificate of Release or 
Discharge from Active Duty), by changing the narrative reason for discharge from 
homosexual act to convenience of the government or something less negative.

     APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty

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 (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 she received an honorable discharge in 1998 and the ban 
on homosexuality wasn't rescinded until 2010. She was not aware it was possible to 
have homosexual act taken off of her DD Form 214 until she recently spoke to her 
local veteran’s service officer and the GI rights hotline.

3.  The applicant provides a copy of her DD Form 214 showing her active military 
service from 28 October 1997 to 15 October 1998.

4.  The applicant service record is void of discharge proceedings, adverse or 
misconduct specific to the reason for her discharge for Board review.

5.  On 15 October 1998, the applicant was honorable discharged.  Her DD Form 214 
showed she was discharged under the provisions of chapter 15 of Army Regulation 
(AR) 635-200, for admission of homosexuality, with a characterization of service of 
honorable conditions.  She completed 11months, and 18 days active service during 
this period.  Her DD Form 214 show in:

*	Item 26 (Separation Code), JRA 
*	Item 27 (Reenlistment Code), RE-4  
*	Item 28 (Narrative Reason for Separation), Homosexual Act

	6.  By Regulation (AR 635-200), chapter 15 at the time, prescribed the criteria and 
procedures for the investigation of homosexual personnel and their discharge from 
the Army.  When the sole basis for separation was homosexuality, a discharge 
under other than honorable conditions could be issued only if such characterization 
was otherwise warranted and if there was a finding that during the current term of 
service the Soldier attempted, solicited or committed a homosexual act by using 
force, coercion or intimidation; with a person under 16 years of age; with a 
subordinate; openly in public view; for compensation; aboard a military vessel or 
aircraft; or in another location subject to military control if the conduct had, or was 
likely to have had, an adverse impact on discipline, good order or morale due to the 
close proximity of other Soldiers of the Armed Forces. In all other cases, the type of 
discharge would reflect the character of the Soldier’s service.
	7.  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. 

		a.  When a Board grants relief, in these cases to change the:

*	narrative reason for discharge to “Secretarial Authority” with a SPD code 
of JFF
*	characterization of service to honorable
*	the reentry eligibility (RE) code to an immediately eligible to reenter 
category

		b.  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



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 a change in DoD policy 
relating to homosexual conduct, the Board concluded that making the changes to 
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 issuing the applicant 
a new DD Form 214 for the period ending 15 October 1998 showing in:

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

	  
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, (Personnel Separations – Enlisted Personnel) chapter 
15 at the time, prescribed the criteria and procedures for the investigation of 
homosexual personnel and their discharge from the Army.  Homosexuality is 
incompatible with military service. Military members who engage in homosexual 
conduct or who, by their statements, demonstrate a tendency to engage in 
homosexual conduct, seriously impair the accomplishment of the military mission. 
The presence of such members adversely affects the ability of the armed forces to 
maintain discipline, good order, and morale; to foster mutual trust and confidence 
among members; to insure the integrity of the system of rank and command; to 
facilitate assignment and worldwide deployment of members who frequently must 
live and work under close conditions affording minimal privacy; to recruit and retain 
members of the armed forces; to maintain the public acceptability of military service; 
and to prevent breaches of security.  

	3.  AR 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes 
are three-character alphabetic combinations which identify reasons for and types of 
separation from active service.  The SPD code of "JML" was the correct code for 
Soldiers separating under chapter 15 for homosexuality

	4. DADT 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

	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, 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

 6.  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 and there were no 
aggravating factors in the record, such as misconduct.  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

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160018520

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