ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20170004261 APPLICANT REQUESTS: upgrade of his general, under honorable condition discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 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)(Member-4) * VA Form 119 (Report of Contact), dated 25 June 1997 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 (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 states he is hoping that at least by checking out all areas of the many separated divisions within the Army, that he can find his personnel records. He did not have DA Form 3499 (Application For Relief From Court-martial Findings And/or Sentence Under The Provisions Of Title 10, United States Code, Section 869) to apply for those services that came up under his particular discharge from the Army. It has been several years and he was told that he had taken too long. He feels that with most of the different areas he has contacted, he was only able to retrieve his 3 separate DD Forms 214. The Board told him, since they did not have his military records, he needed to provide documentation for the Board to make a determination on his case. All he could provide were the three aforementioned documents. His discharge packet was not available for the Board to review. He had no way of proving his final release from active duty on 14 October 1992. He was separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of courts- martial. He received a general, under honorable condition discharge. It was explained to him as the nice way out of the Army. It was that, or be handcuffed and spend some time at Fort Leavenworth prison so, he really had no choice. He had his three daughters to raise since his ex-wife had already abandoned them by that time. He felt that he really hard to accept the chapter 10, but felt that he really lost the most important part of his time spent on active duty. He wanted to retire from the Army so he could provide for his family. He felt that an honorable discharge was appropriate when the quality of his service to his country had been met. He always stayed to the standards of acceptable conduct and performance of his duties for Army personnel while on duty. He felt that so many times an injustice and the way he was treated during the process to eliminate him from active duty before the repeal to the Don’t Ask, Don’t Tell (DADT), dated 20 September 2011. He would like corrections of his military records so he can get his retirement from the Army for the 20 years and 6 days he served. 3. The applicant’s service records are not available for the Board to review. 4. His DD Forms 214 shows: a. He enlisted in the Regular Army on 5 April 1971. b. He was honorably transferred to U.S. Army Reserves on 19 February 1973. c. He enlisted in the Regular Army for a second time on 15 January 1974 and honorably discharged on 14 June 1977. d. He enlisted in the Regular Army for a third time on 5 March 1979 with subsequent reenlistments on 29 September 1982 and 19 February 1988. 5. The applicant’s separation packet is not available for review. His DD Form 214 shows he was discharged on 14 October 1992 under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of courts-martial. He was issued a general, under honorable condition discharge. He completed 20 years, 0 months, and 6 days of active service. It also shows he was awarded or authorized: * Army Good Conduct Medal (6th Award) * Armed Forces Expeditionary Medal * Noncommissioned Officer Development Ribbon * Army Service Ribbon * Overseas Service Ribbon with numeral 2 * Expert Marksmanship Qualification Badge with Rifle Bar * National Defense Service Medal with one service star 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitation. 7. By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the applicant’s admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. 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 9. 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 found relief was warranted. Based upon a change in regulatory guidance relating to homosexual conduct in the Armed Forces, the Board concluded there was an injustice in the case which warranted correction. As a result, the Board recommended upgrading the characterization of service to Honorable, as well as changing the narrative reason, separation code and re-entry 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 that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for the period ending 14 October 1992 and issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "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 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. a. Paragraph 3-7a (Honorable discharge) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to AD or ADT, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b (General discharge) A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under other than honorable conditions) A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004261 4 1