IN THE CASE OF: BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20170004382 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 states his request is based on the lifted restrictions for Army service by homosexuals. 3. The applicant enlisted in the Regular Army on 28 July 1998. 4. On 12 September 2000, court-martial charges were preferred against the applicant for one specification of violating Article 125 (Sodomy) of the Uniform Code of Military Justice (UCMJ), by committing sodomy with an unidentified man for the purpose of receiving money and one specification of violating Article 134 (General Article) of the UCMJ by wrongfully committing numerous indecent acts with an unidentified man in a commercial video titled "Brothers in Arms." 5. On 14 September 2000, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, due to the charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. 6. In connection with his request, he indicated he was making the request of his own free will and that he had not been subjected to any coercion whatsoever by any person. He acknowledged he understood the elements of the offenses charged and that he was guilty of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged. He was advised of: * the nature of his rights under the UCMJ * the elements of the offenses with which he was charged * the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * the possible defenses which appeared to be available and the maximum permissible punishment if found guilty 7. He also acknowledged he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge. 8. On 14 September 2000, the separation authority approved the applicant's request for discharge and directed his reduction to the rank of private (PVT)/E-1 and his service characterized as under other than honorable conditions. On 22 September 2000, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the authority of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial, with his service characterized as under other than honorable conditions. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board considered the evidence in the context of published DoD guidance for consideration of discharge upgrade requests and DoD guidance on correcting records of personnel discharged under "Don't Ask, Don't Tell" (DADT) or prior policies. 2. The Board noted that the applicant was not discharged under DADT or a related policy. He was charged with two violations of the UCMJ, and he voluntarily requested discharge in lieu of trial by court-martial. The Board considered his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RHD :BMM :ACB DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt. Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service. Consulting counsel will advise the member concerning the elements of the offense or offenses for which he or she is charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 be 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004382 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1