ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20170012233  


APPLICANT REQUESTS: the characterization of service of her deceased brother, a former service member (FSM), be upgraded from under other than honorable conditions to honorable.  She also requests a personal appearance.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Certificate of Death, dated 3 August 2016
* US Naval Institute News Article

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 FSM's sister states that the FSM received his discharge due to being a homosexual.  Her brother loved the Army and was proud of becoming a senior parachutist.  She states that she researched US policy on homosexuals in the military and that now that they can serve openly in the military.  She would like her brother’s service characterization to be changed.  

3.  The FSM's sister provides:

	a.  A certificate of death that shows the FSM died on 30 July 2016, and listing the applicant’s name as the FSM’s sister and informant.  

	b.  A news article from the US Naval Institute that provides a history of key dates in the in US policy toward homosexuals in the military.  


4.  A review of the FSM’s service records shows:

	a.  He enlisted in the Regular Army on 22 January 1951.  He was honorably discharged on 18 May 1953 to accept appointment as a commissioned officer.  He was issued a DD Form 214 (Report of Separation from the Armed Forces of the United States) for his enlisted service.

	b.  On 23 February 1955, he became a commissioned officer with the rank of
second lieutenant.

	c.  On 4 November 1960, he submitted an application for his resignation under Army Regulation (AR) 635-89 (Personnel Separations - Homosexuality), for the good of the service.  He acknowledged:

* he may receive an under other than honorable conditions discharge certificate
* he would not be entitled to mustering out-pay, compensation for unused accrued leave, transportation of dependents and household goods, or severance pay
* he may be barred from all rights, based upon the period of service from which he would be separated, under any laws administered by the Veterans Administration

	d.  The chain of command recommended approval

	e.  On 6 February 1961, the Commanding General stated the applicant's proffered resignation for the good of the service was considered by an Hoc Review Board consisting of several officers.  Each member considered the case independently. The board recommended acceptance of the resignation and that discharge be under other than honorable conditions (DD Form 794A).  The board's recommendation, conflicting with the recommendation of the forwarding commander as to character of discharge, reflects consideration of the fact that [Applicant] conducted himself in a disgraceful manner and degraded the officer corps by homosexual advances toward an enlisted man.  Further, his record of service includes evidence of past misconduct and does not indicate sufficient bases to warrant issuance of a General Discharge in this case.

	f.  On 5 April 1961, Headquarters, Department of the Army accepted the applicant's resignation of his commission as a captain for the good of the service effective 18 April 1961.  

	g.  On 18 April 1961,the FSM was discharged.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-120 (separation program number (SPN) 52a (Officer Resignations and Discharges)) with an under other than honorable conditions characterization of service.  The FSM had 7 years and 11 months of active service during this period.  It also shows he was awarded or authorized the Commendation Medal with Medal Pendant.  

5.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

6.  By regulation (AR 635-89), the separation of individuals who voluntarily participated in homosexual acts involved in isolated episodes stemming solely from immaturity, curiosity, or intoxication were excluded, but were to be eliminated under other regulations if appropriate.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued.

* 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

7.  By regulation (AR 635-120), chapter 5 stated an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in AR 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction), prior to charges being preferred and prior to being recommended for elimination under the provisions of AR 635-100.  A resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

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.  In reaching its determination, the Board can consider the FSM’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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Additionally, the Board determined that partial relief was warranted.  Based upon the narrative reason for separation and a change in DoD policy concerning homosexual conduct in the armed forces the Board concluded that upgrading the characterization of service was appropriate.  However, based upon the past misconduct raised within the commanding general’s decision, the Board determined that upgrading to Under Honorable Conditions (General) was a more appropriate characterization of service than that requested (Honorable).

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 his characterization of service as Under Honorable Conditions (General).
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable.
	 
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.  Army Regulation (AR) 635-89 (Personnel Separations - 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.

	a.  An undesirable discharge was normally considered appropriate for Class II cases.  The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued.

	b.  A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service, or if an individual had served for an extended period of time and the separation authority determined that such action was in the best interests of the service.  In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation.

3.  Army Regulation 635-120 (Officer Resignations and Discharges) (in effect at the time) provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation states an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward a trial by general court martial, when he or she is under a suspended sentence of dismissal, or he or she elects to tender a resignation because of reason outlined in AR 635-100.

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.  

5.  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

6.  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

7.  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.

8.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

9.  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)	 AR20170012233


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