ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 October 2019

	DOCKET NUMBER:  AR20170006039

APPLICANT REQUESTS:  in effect, correction of his DD Form 214 (Certificate of 
Release or Discharge from Active Duty), for the period ending 14 August 1999 to 
show a different narrative reason for separation

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)

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 in light of the fact homosexuality is no longer against military 
policy with the repeal of, “Don’t Ask Don’t Tell,” as of 20 September 2011,  the 
narrative reason on his DD Form 214 should be removed.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 5 July 1990.  

	b.  A memorandum, dated 7 July 1999, reveals the applicant’s statement on 24 
February 1999, that he was homosexual, or words to that effect.

	c.  The applicant was discharged on 14 August 1999.  The DD Form 214 he was 
issued confirms the following entries:

*	item 24 (Character of Service):  Honorable 
*	item 25 (Separation Authority):  Army Regulation 635-200,
paragraph 15-3B
*	item 26 (Separation Code):  JRB
*	item 27 (Reentry Code):  RE-4
*	item 28 (Narrative Reason for Separation):  Homosexual Admission

4.  Army Regulation 635-8 (Separation Processing and Documents), currently in 
effect, prescribes the transition processing function of the military personnel system, 
including preparation of the DD Form 214.

5.  Army Regulation 635-89 (Homosexuality), in effect at the time, prescribed criteria 
and procedures for the investigation of homosexual personnel and their discharge 
from the Army.  

6.  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

7.  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, the Board found relief 
was warranted.  Based upon the facts and circumstances leading to the applicant’s 
separation and a change in policy relating to homosexual conduct in the military, the 
Board concluded that changing the narrative reason, the separation code, the 
authorization for separation and the reentry code all warranted correction.

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 Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 showing:

*	Separation Authority (Item 25):  Army Regulation 635-200
*	Separation Code (Item 26):  JFF
*	Reentry Code (Item 27):  RE-1
*	Narrative Reason for Separation (Item 28):  Secretarial Authority
	  
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 635-200, 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.  Army Regulation 635-89 (Homosexuality), in effect at the time, prescribed criteria 
and procedures for the investigation of homosexual personnel and their discharge 
from the Army.  Homosexuals were divided into three classes.  Class I included 
those cases which involved an invasion of the rights of another person as where the 
homosexual act was accompanied by assault or coercion or where cooperation or 
consent was obtained through fraud; Class II included those cases wherein 
personnel subject to court-martial jurisdiction engaged in one or more provable 
homosexual acts not within the purview of Class I; Class III included cases of overt, 
confirmed homosexuals who did not engage in any homosexual acts since entry into 
military service and individuals who possessed homosexual tendencies to such a 
degree as to render them unsuitable for military service.  Individuals who admitted to 
being confirmed homosexuals or admitted committing one or more overt acts of 
homosexuality while in service would normally be separated under other than 
honorable conditions if, because of the improbability of successful trial, they were 
separated administratively.

4.  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)	 AR20170006039

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