ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    26 April 2019

	DOCKET NUMBER:  AR20170000301


APPLICANT REQUESTS:  correction of his:
 
* separation authority, from "Para 15-4B AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel]" to "Army Regulation 635-200, paragraph 5-3" 
* separation code, from "JML" to "JFF"  
* reenlistment (RE) code, from "RE-4" to "RE-1"
* narrative reason for separation, from "Admission of Homosexuality/Bisexuality; or Marriage or Attempted Marriage to a Person Known to be of Same Biological Sex" to "Secretarial Authority"
 
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), with attorney statement
* Separation Recommendation Checklist
* Request for Discharge Memorandum, dated 31 August 1981
* Characterization of Service Checklist
* DD Form 214, for the period ending 18 September 1981   

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10,          U.S. Code, 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 defers his statement to counsel.  In an attached statement, counsel contends: 

* on 20 September 2011, the Department of Defense's (DoD) prohibition on openly serving gay, lesbian, and bisexual service members ended
* per DoD Instructions (DoDI) 1332.28 (Discharge Review Board (DRB) Procedures and Standards), the policies and procedures changed and differ from when the applicant was discharged 
* there are sufficient mitigating factors to merit changing the applicant's 
DD Form 214
* the applicant served honorably from 30 June 1980 to 18 September 1981 
* the applicant was discharged solely because of homosexuality or an attempt to marry a person of the same biological sex
* the applicant had no record of receiving disciplinary action to include Article 15, convictions by court-martial, lost time, demotions, and his conduct and efficiency was deemed "satisfactory" 
* in the interest of justice, the applicant should be granted correction of his 
DD Form 214  

3.  The applicant enlisted in the Regular Army on 30 May 1980.   

4.  The applicant was interviewed my CPT X on 27 April 1981.  The interview was to discuss incidents that happened with other members of the same sex within the squadron.  

      a.  It was stated that he gave an Easter card to a fellow soldier and that he made sexual overtures towards another.  CPT X asked if he had anything to say in reference to these incidents, he commented that he was looking for a lover.  

      b.  He finished the discussion by informing him of the consequences of further such acts, and by telling him that he would refer this matter to the attention of the Headquarter and Headquarters Company Commander.  

5.  The applicant underwent a mental status evaluation on 6 May 1981, at the community crisis center.  The memo show the applicant identified himself as homosexual.  The medical professional considered him psychiatrically cleared for administrative action as deemed appropriate by his chain of command.              

6.  The applicant's immediate commander notified him, on 15 July 1981, of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of homosexuality.  The specific reason for the discharge was the applicant's engagement in homosexual acts.  The commander further discussed the applicant's entitlements and rights and recommendation.  The applicant acknowledged receipt of the notification that same day. 

7.  The applicant consulted with legal counsel on 15 July 1981.  He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant elected not to submit a statement in his own behalf.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.     
8.  The applicant’s immediate commander recommended on 31 August 1981 that the applicant be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexuality.  

9.  The separation authority's approval memorandum is not available for review; however, his DD Form 214 shows that he was discharged under the provision of Army Regulation 635-200, chapter 15-4b, by reason of homosexuality.  His DD Form 214 further shows his separation code as "JML," his reenlistment code as "RE-4," and his narrative reason for separation as "Admission of Homosexuality/Bisexuality; or Marriage or Attempted Marriage to a Person Known to be of Same Biological Sex." 

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214.

11.  The SPD/RE Code Cross Reference Table establishes the appropriate RE code for each separation code, based on the separation authority.

12.  Army Regulation 635-200 is the governing Army regulation for administrative separations, including appropriate narrative reasons for separation. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the circumstances that resulted in the applicant’s discharge and recent policy changes within DoD on homosexual conduct, the Board concluded that all requested changes had merit.  For that reason, the Board recommended granting the applicant’s request.

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 as follows:

* separation authority, from "Para 15-4B AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel]" to "Army Regulation 635-200, paragraph 5-3" 
* separation code, from "JML" to "JFF"  
* reenlistment (RE) code, from "RE-4" to "RE-1"
* narrative reason for separation, from "Admission of Homosexuality/Bisexuality; or Marriage or Attempted Marriage to a Person Known to be of Same Biological Sex" to "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, U.S. Code, 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 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214.  At the time, this regulation prescribed the separation code "JML" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 15, based on homosexuality.  Additionally, the SPD/RE Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, Chapter 15 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.

4.  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. 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.

5.  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 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.

6.  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"

7.  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.


ABCMR Record of Proceedings (cont)	 AR20170000301
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