ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170001922 APPLICANT REQUESTS: an upgrade of her general discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * (online) DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 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 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, in effect, based on the 2011 "Don't Ask, Don't Tell" Policy change made by former President Obama, all discharges should be upgraded to honorable. 3. A review of the applicant's service record shows: a. She enlisted in the Army on 14 June 2001. b. Her duty status changed as follows: * from present for duty (PDY) to absent without leave (AWOL), effective 4 June 2002 * from AWOL to PDY, effective 7 June 2002 c. On 1 August 2002, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 15, for homosexual conduct. d. The applicant acknowledged receipt of the commander's intent to separate her. On 2 August 20002, she consulted with legal counsel who advised her of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her. She elected not to submit a statement in her own behalf. She acknowledged she: * understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her * understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if she received a discharge characterization of less than honorable, she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but she understood that an act of consideration by either board did not imply her discharge would be upgraded e. Subsequent to this acknowledgement and consultation with counsel, her immediate commander initiated separation action against her due to homosexual conduct, in accordance with AR 635-200, chapter 15. Her chain of command recommended approval. f. On 28 August 2002, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 15, homosexuality, with her service characterized as general under honorable conditions. The applicant was discharged accordingly on 11 September 2002. g. Her DD Form 214 reflects she was discharged on 11 September 2002, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), chapter 15-3b, homosexual admission, with a characterization of service of general under honorable conditions. She completed 1 year, 2 months and 28 days of active service. Her DD Form 214 also shows in: * Item 23 (Type of Separation) - Discharge * Item 26 (Separation Code) – JRB * Item 27 (Reentry Code) - 4 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. 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 6. The Board should consider the applicant's submissions 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 a change in DoD policy relating to homosexual conduct, the Board concluded that upgrading the characterization of service and changing the narrative reason for separation, the separation code, as well as the reentry (RE) code. 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 the: * characterization of service: “Honorable” * narrative reason for separation: “Secretarial Authority” * separation code: “JFF” * reentry (RE) code: “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 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, United States Code, 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: * narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category b. 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 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, DD 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. ABCMR Record of Proceedings (cont) AR20170001922 4 1