ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 June 2019

	DOCKET NUMBER:  AR20170007679


APPLICANT REQUESTS:  removal of the narrative reason for separation from his DD Form 214 (Certificate of Release or discharge from Active Duty).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214

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 the reason he is requesting the narrative reason for separation be removed from block 28 (Narrative Reason for Separation) of his DD Form 214 is that he must provide a copy of his DD Form 214 to potential employers and he believes this is the reason that he has not been hired and is a bar to his employment potential.

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

	a.  He enlisted in the Regular Army (RA) on 1 October 1987.

	b.  He reenlisted in the RA on 22 February 1989.

	c.  He reenlisted in the RA on 29 March 1990.

	d.  He served with the 7th Battalion, 8th Field Artillery, Schofield Barracks, Hawaii from 1 June 1990 to 25 November 1990.

	e.  On 17 September 1990, the U.S. Army Criminal Investigation Command investigated the applicant for solicitation to commit sodomy and indecent assault between 1 September – 1 October 1990.
   f.  On 19 October 1990, the applicant was counseled by his first sergeant to inform him that his commander was taking action to discharge him before his expiration term of Service, under the provision of chapter 15, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  If he were to be discharged under chapter 15, AR 635-200 he could receive a General Discharge Certificate and his service could be characterized as under honorable conditions.

	g.  On 8 November 1990, the applicant acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action.  He Acknowledged:

* If he had 6 years of total military service, he would entitled to have his case heard before an administrative discharge board
* he has the right to be represented by military or civilian counsel at no expense to the government
* he may expect to encounter substantial prejudice in civilian life if he should receive a general under honorable conditions discharge
* he may apply to the Army Discharge Review Board or the ABCMR and the consideration by either board does not imply that his discharge will be upgraded

   h.  Subsequent to the applicant's acknowledgement, his commander initiated separation action against him.  The commander stated that the applicant's attempt to solicit sexual favors in an unnatural homosexual manner towards fellow Soldiers.  The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.  The presence of such Soldiers adversely affects the ability of the armed forces to maintain discipline, good order, and morale, and mutual trust.  Homosexual solicitation will not be tolerated in the Army.  The chain of command recommended approval for the separation action.

   i.  On 8 November 1990, the separation authority approved the recommendation for separation and directed the applicant be issued an Honorable Discharge Certificate.

   j.  On 28 November 1990, he was discharged accordingly.  His DD Form 214 confirms he was honorably discharged in the rank/grade of specialist/E-4 by reason of Solicited Another to Engage in Homosexual Acts under the provisions of chapter 15, AR 635-200.  He completed 3 years, 1 months, and 28 days of active service.  This form also shows he was assigned separation code JRA and Reentry Code 4.  

4.  By regulation (AR 635-200), when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III and if there is 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 in circumstances with violate customary military superior-subordinate relationships, openly in public view, for compensation, aboard a military vessel or aircraft, in another location subject to military control if the conduct had or likely to have had an adverse impact on discipline, good order, or morale due to the close proximity of other Soldier of the Armed Forces.  In all other cases, the type of discharge will 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 "Don't Ask Don't Tell (DADT)" or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct

6. 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, the Board found the relief was warranted.  The applicant’s contentions were carefully considered.  One member voted to deny as his solicitation of sexual favors was inappropriate conduct for any Soldier whether straight or not.  The majority of the Board voted to grant relief based upon a change in DoD policy relating to homosexual conduct, the Board concluded that making the changes to the applicant's DD Form 214 was appropriate.

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 issuing the applicant a new DD Form 214 for the period ending 28 November 1990 showing in:

* item 25 (Separation Authority):  Army Regulation 635-200, paragraph 5-3
* item 26 (Separation Code):  JFF
* item 27 (Reentry Code):  1
* item 28 (Narrative Reason for Separation):  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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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.

7.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170007679


4


1