ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170012440 APPLICANT REQUESTS: an upgrade of her uncharacterized discharge 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 (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 he is not a homosexual. He believes he was discharged for confusion about his homosexual tendencies and possibly falsification of enlistment papers. He explains he was interviewed by an Army psychiatrist and was never provided an opportunity of defense or counseling. He has been married for over 50 years and has lived as a heterosexual his entire life. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 October 1962. b. On 18 February 1963, he provided a sworn statement attesting to his homosexual conduct prior to joining the military. He explained while in basic training, the close confinement with fellow trainees increased his desire for male companionship. However, he never engaged in homosexual acts while in the U.S. Army. c. On 18 February 1963, the applicant’s immediate commander notified him that discharge action was being initiated against him for admission of homosexuality and in accordance with Section II of Army Regulation (AR) 635- 89 (Personnel Separations – Homosexuals), in effect at the time. d. The facts and circumstances pertaining to the applicant’s acknowledgement of discharge actions and consultation with legal counsel are not available for the Board to review. e. The immediate commander recommended separation action against him under the provisions of Section II of AR 635-89 due to homosexual tendencies. The chain of command recommended approval. f. Consistent with the chain of command's recommendations on 20 February 1963, the separation authority approved the separation and ordered the applicant discharged for homosexual tendencies under AR 635-89 and directed the issuance of a General Discharge Certificate. g. On 1 March 1963, he was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was discharged with an under honorable conditions characterization of service by reason of homosexual tendencies under provisions of Section II of AR 635-89, in effect at the time. h. He completed 1 month and 4 days of net active Army Regulation AR 635-200 (Personnel Separations – Enlisted Separations)service. 4. By regulation (635-89), states homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in these regulations, is mandatory. 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 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 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 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 issuing the applicant a new DD Form 214 for the period ending 1 March 1963 showing in: * item 13 (Characterization of Service): Honorable * item 11c (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 11c (Separation Code): JFF * item 11c (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. 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 635-89 (Personnel Separations – Homosexuals) Section I, at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012440 3 1