ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

	BOARD DATE:  18 April 2019

	DOCKET NUMBER:  AR20170003579


APPLICANT REQUESTS: reconsideration of her earlier request for an upgrade of her 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 214 (Certificate of Release or Discharge from Active Duty)
* Certification of Military Service
* Discharge Certificate


FACTS:

1.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130016413 on 15 October 2013.

2.  The applicant states she was discharged in October 1981 with an under other than honorable conditions characterization of service.  In 2016, the President of the United States changed policy and homosexuals can now serve openly.  With the change in the law (Don't Ask Don't Tell (DADT)), she feels it is time her discharge is upgraded.  

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

	a.  She enlisted in the Regular Army (RA) on 12 July 1978 and she held military occupational specialty 95B (Military Police).  She was advanced to specialist four (SP4)/E-4 on 1 November 1979.  

	b.  She reenlisted on 15 January 1981.  She served in Germany from March to August 1981.  

	c.  On 23 April 1981, she underwent a psychiatric evaluation that determined she was mentally responsible and able to distinguish right from wrong and adhere to the right.  She stated she was being unjustly charged with being homosexual.  She denied accusations of homosexuality made against her.  She stated she kept to herself and did not socialize with personnel in the barracks. 

	d.  On 12 June 1981, the applicant's immediate commander notified her that discharge action was being initiated against her for unsuitability (homosexuality) in accordance with chapter 15 of Army Regulation (AR) 635-200 (Personnel Separations).  The commander stated that during her tenure within the unit, she displayed overt homosexual tendencies involving numerous other female Soldiers.  Her overly aggressive disposition resulted in her imposing her own personal sexual preferences on individuals who were averse to her advances.  The type or conduct displayed by her was unacceptable and was not compatible with military environment. ·

	e.  The applicant acknowledged receipt of the notification of her proposed discharge action.  She subsequently consulted with legal counsel and she was advised of the basis for the contemplated separation action, the possible effects of an undesirable discharge, and of the procedures and rights available to her.  She requested consideration of her case by a board of officers and elected not to submit a statement. 

	f.  A board of officers convened on 12 August 1981 at Headquarters, Miesau Army Depot to determine of the applicant should be retained or discharged.  The board found the applicant undesirable for further retention because she stated on several occasions that she was homosexual.  The board also found that she had engaged in, attempted to engage in, and solicited another to engage in homosexual act or acts.  She was also undesirable because she attempted, solicited, and committed homosexual acts by using coercion or intimidation, with a subordinate in circumstances that violated customary military superior-subordinate relationships in a military billet which was likely to have an adverse impact on discipline.  The board recommended her 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 2 October 1981, she was discharged accordingly.  Her DD Form 214 confirms she was discharged in the rank/grade pf private/E-1 by reason of unsuitability, (homosexuality) under the provisions of chapter 15 of AR 635-200 with an under honorable conditions characterization of service.  She completed 3 years, 2 months, and 21 days of active service.  This form also shows she was assigned separation code JKC and Reentry Code 4.

	i.  On 12 October 1993, the Army Discharge Review Board (ADRB) reviewed her discharge processing but found it proper and equitable.  The ADRB denied her petition for an upgrade of her discharge. 
	j.  On 15 June 1988, the ABCMR also reviewed her discharge processing but found no error or injustice.  The ABCMR denied her petition for an upgrade of her 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 her undesirable because she attempted, solicited, and committed homosexual acts by using coercion or intimidation, with a subordinate in circumstances that violated customary military superior-subordinate relationships in a military billet which was likely to have an adverse impact on discipline.

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.  One outcome discussed was to deny the request for relief based upon there being evidence within the case that eludes to a sexual harassment offense beyond the homosexuality.  However, based upon the totality of the circumstances, the Board concluded that based upon the changes in policy involving the discharge, the Board recommended granting the appliant’s request for relief.  



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:x	x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

x	:	:	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 his characterization of service as Under Honorable Conditions (General).

	 
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)	 AR20170003579


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