ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20170003691 APPLICANT REQUESTS: an upgrade to her under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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: a. Empathetically and unequivocally that she have not ever engaged in homosexual activity and due to the shame she has carried with her for 55 years, she did not share her military experience with her children. In preparation for her admission to hospice care, they discovered her old photographs, which prompted questions as to why she kept her service a secret. b. She described to her children how several of the girls in her nursing unit and she celebrated together with an evening out. She apparently indulged in more alcohol that she should have and was absolutely stunned to wake-up the next morning to discover one of the girls was sleeping with her in her bed. She was confronted by her commanding offer and she knew she was guilty of over indulging with alcohol, but she absolutely did not participate in any homosexual acts. She never wished to re-live the day she was forced to be dishonorably discharged, but her children told her that she was unjustly discharged and for that reason she is seeking a correction of her discharge. c. She is doing this for one reason only and she would prefer to leave a sleeping dogs lie. She does not desire any benefits, other than to be laid to rest next to her husband who was a veteran and is buried at the Fort McPherson National Cemetery. They were married in 1962 and divorced in 1990. She understand that she does qualify to be buried there although they were divorced. They did rekindled their relationship and she was by his side the day he passed. Since she does not qualify as his wife, she is requesting to qualify on her own for the brief service to her country and her interrupted desire to become a nurse, despite the fact her dreams were not able to be fulfilled due to someone’s perception that she was of poor moral character. d. She has burial insurance and plan to be cremated so she is only asking to have her ashes buried next to her husband’s and to her name added to the back of his headstone. Her four children, and grandchildren can then visit their gravesites when passing through. She knows that her days are few, she is being transferred to hospice care and is respectfully requesting that a careful review of her situation and approve the upgrade of her character of service. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 8 June 1959. b. She was assigned to the United States Army Hospital (USAH), Women Army Corps (WAC) Detachment, Sandia Base, Albuquerque, NM from 16 December 1959 to 2 March 1961. c. She underwent a medical examination at the USAH, Sandia Base, Albuquerque, NM on 17 February 1961. A psychiatric evaluation was conducted on 23 February 1961 and after careful consideration diagnosed the applicant conditions as sexual deviate, overt, homosexual. It states that there is no history of mental illness in the family or in the subject concerned. The applicant denied any prior psychiatric help. She has signed sworn affidavit to the effect that she has taken part in homosexual activities for approximately 2 1/2 years and in this certificate stated that she considered herself a homosexual, although during her psychiatric evaluation she denied that she was asked this question or that she answered it, although it is noted that she initialed her signature immediately under this question. The findings stated that the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings. 4. The applicant was discharged on 2 March 1961 as per Special Orders Number 44, dated 2 March 1961. 5. Her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows she was discharged under the provisions of AR 635-89, Personnel Separations - Homosexuality and her service characterization is under conditions other than honorable. She completed a period of 1 year, 8 months, and 25 days. 6. 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. 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 8. In reaching its determination, the Board can consider the applicant's petition and his service record 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 found the relief was warranted. The Board concluded that regardless as to whether the applicant ever engaged in homosexual conduct before or not, as a result of the DoD policy change related to homosexual conduct in the military, it was appropriate to upgrade the characterization of service and narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :JB :JB :MG 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: * characterization of service as “Honorable” * narrative reason for separation as “Secretarial Authority” * separation code as “JFF” * reentry code as “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. AR 635-89, Personnel Separations - Homosexuality in effect at the time prescribed the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals. Homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in these regulations, is mandatory. Homosexuals are unfit for military service because their presence impairs the morale and discipline of the Army, and homosexuality is a manifestation of a severe personality defect which appreciably limits the ability of such individuals to function effectively in society. a. Paragraph 2d, states the character of separation of a homosexual individual separated under these regulations will be determined without regard to his component, sex, or status (officer, warrant officer, or enlisted), and will be based upon consideration of all relevant facts in the case, including the individual's record of service. b. Paragraph 12, states the convening authorities may approve (or recommend in the case of officers) an honorable or general discharge if the individual concerned disclosed his homosexual tendencies at the time of entrance into service, or if the individual has performed outstanding or heroic military service, or if the individual has performed service over an extended period and the convening authority determines that' the best interests of the service would be served thereby. In the case of officers, final determination as to the character of separation will be made at Headquarters, Department of the Army. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20170003691 4 1