ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170008098 APPLICANT REQUESTS: character of service upgraded from under honorable conditions to honorable and upgrade of her reenlistment (RE) code from RE 4 to RE 1 or RE 3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * United Services Automobile Association (USAA) letter 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 she was discharged for homosexuality prior to the Don't Ask Don't Tell (DADT) Repeal Act (II R 2965, S 4023) U.S. statute enacted in 2010 that allowed homosexuals to openly serve in the U.S. military. She believes that her DD Form 214 (Certificate of Release or Discharge from Active Duty) should reflect current uniform code of military code of conduct. She was denied membership to USAA on 16 February 2017 based on her general discharge seven (7) years after the fact that homosexuals are not considered barred from service. 3. The applicant provided a letter from USAA dated 16 February 2017. The letter states she is not eligible for USAA membership because of her general discharge. 4. A review of the applicant’s service records shows: a. She enlisted in the Regular Army on 27 October 1983. b. On 14 November 1985, her immediate commander designated an investigating officer (IO) to investigate alleged offenses against her. c. A total of four sworn statements were submitted by Private First Class (PFC) S___ D___, Sergeant C___ W___, and the applicant. The sworn statement are in the packet for review. d. On 21 November 1985, the IO’s summary states homosexuality, actively engaged in or passively permitted, is clearly incompatible with military service. Exhibits A through D (sworn statements), in his opinion, indicate beyond a reasonable doubt that both service members have engaged in homosexual activities. In accordance with (IAW) chapter 15, Army Regulation (AR) 635-200 (Enlisted Personnel), he recommended a chapter action be initiated on both individuals. To ensure justice was served, he also recommended a board of officers be convened to be sure all required criteria for separation was met as defined by paragraph 15-3. In addition, he recommended that PFC D___ be moved to another unit until this matter was fully resolved. This should be done to reduce the possibility of further homosexual activity between the individuals. e. On 20 December 1985, a mental status evaluation was conducted. The examiner states that the applicant has a borderline personality disorder. It is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with her ability to perform her duty. He advised a chapter (i.e. paragraph) 5-13 or 15 separation, which does not require a psyche evaluation. f. On 19 February 1986, her immediate commander notified her of his intent to initiate action to separate her under the provisions of paragraph 15-3, chapter 15, AR 635-200 (Enlisted Personnel), for homosexuality. The applicant acknowledged receipt of the commander's intent to separate her. g. On 20 February 1986, her immediate commander initiated and forwarded the initiated separation action against her for homosexuality to the intermediate commander. h. On 20 February 1986, she consulted with legal counsel. She waived her rights to have her case considered by an administrative board and legal counsel. She did not submit a statement on her on own behalf. She acknowledged: * she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her * she also acknowledged that as a result of a discharge under other than honorable conditions she might be ineligible for many or all benefits as a veteran under both Federal and State laws * she understood if she received a discharge which is less than honorable, she may apply to the Army Discharge Review Board and/or the ABCMR to upgrade her discharge; however, she realized that consideration by either board does not imply that her discharge would be upgraded * she understands that she will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge i. On 21 February 1986, her intermediate commander recommended and forwarded the initiated separation action to the separation authority. j. On 25 February 1986, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s discharge under the provisions of chapter 15, AR 635-200 with a general discharge certificate under honorable conditions and RE code 3, IAW AR 601-210 (Regular Army and Army Reserve Enlistment Program). The applicant was not transferred to the individual ready reserve. k. On 14 March 1986, she was discharged from active duty under the provisions of chapter 15, AR 635-200 with a general discharge certificate under honorable conditions and RE code 3,. She completed 2 years, 4 months and 18 days of active service. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar (M16) * Item 26 (Separation Code) - JRA * Item 27 (Reenlistment Code) – RE 4 5. By regulation AR 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. 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. By regulation AR 635-5 (Separation Documents), the DD Form 214 will be annotated for item 27 (Reenlistment Code) IAW AR 601–210 (Regular Army and Army Reserve Enlistment Program). 8. In reaching its determination, the Board can consider the applicant’s petition and her service record IAW 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 determined that relief was warranted. Based upon the documentary evidence submitted by the applicant and found within the military service record, as well as the current narrative reason for separation, the Board concluded there was sufficient evidence to show that an upgrade of the characterization of service to Honorable was appropriate. Additionally, the Board recommended changing the narrative reason for separation to Secretarial Authority and the separation code to JFF. The Board also found that changing the RE code to RE3 based the medical evaluation’s finding was the most appropriate. 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 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” * RE code as “RE3” 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 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. The "Don't Ask, Don't Tell (DADT)" policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 3. Army Regulation 635-200 (Enlisted Personnel) describes the different types of characterization of service. Chapter 15, prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. Paragraph 15-4, when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is 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 will reflect the character of the Soldier’s service. 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, 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. 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 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 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. 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. 5. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. Block 27 (Reenlistment (RE) Code), for the RE Code, AR 601–210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army and U.S. Army Reserves reentry eligibility and provides regulatory guidance on the RE codes. 6. 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) AR20170008098 8 1