ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    24 April 2019

	DOCKET NUMBER:  AR20160018719


APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 47 (Record of Induction)
* DD Form (Enlistment Contract)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 25 February 1985
* Other separation documents 

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  The applicant states the reason for discharge (homosexuality) is no longer valid. 

3.  Review of the applicant's service records shows: 

	a.  Having had prior service 20 February 1967 to 7 January 1969 and 4 June 1971 to 19 December 1978), the applicant reenlisted in the Regular Army on 20 December 1978.

	b.  On 19 November 1984, the U.S. Army Criminal Investigation Command investigated the applicant for fondling his natural son's penis for nearly a 5-year period. He had also performed fellatio on his son on at least one occasion.  The applicant confessed to the CID agents that he had molested and/or sodomized his son.  He was titled for sodomy, indecent act with a child under 16. 

	c.  On 23 January 1985, the applicant's immediate commander notified him that discharge action was being initiated against him for homosexuality-homosexual acts in accordance with chapter 15 of Army Regulation (AR) 635-200 (Personnel Separations).  

	d.  The applicant acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  He requested consideration of his case by a board of officers and elected not to submit a statement. 

	e.  the chain of command recommended approval of the separation action.

	f.  A board of officers convened on 21 February 1985 at Fort Carson, CO to determine of the applicant should be retained or discharged.  The board carefully considered the evidence before it and found the allegations in the notice of proposed separation were supported by a preponderance of the evidence and that the findings warranted separation.  The board recommended his discharge due to misconduct with an under other than honorable conditions characterization of service. 

	g.  Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the board of officers' findings and recommendation and ordered the applicant discharged for homosexuality under AR 635-200 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

	h.  On 25 February 1985, he was discharged accordingly.  His DD Form 214 confirms he was discharged in the rank/grade pf private/E-1 by reason of Admission of Homosexuality under the provisions of chapter 15 of AR 635-200 with an under other than honorable conditions characterization of service.  He completed 6 years, 2 months, and 8 days of active service.  This form also shows he was assigned separation code JRB and Reentry Code 4.

	i.  On 22 February 1988, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

4.  By regulation (635-200), 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. 

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. The board of officers found misconduct because he attempted, solicited, and committed homosexual acts with his own son.  

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 not warranted.  Based upon the misconduct that resulted in the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

	 
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 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. 

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, 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.

4.  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)	 AR20160018719


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