ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20170013042 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Family Physicians Statement 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 prays that his request for an upgrade is approve. 3. The applicant provides a detailed self-authored statement, which is attached describing the incident and his military and personal experiences. He also provides a character reference from his family physician with regards to his sexuality. 4. A review of the applicant’s service record shows: a. He enlisted in the regular Army on 3 October 1958. b. On 29 April 1960, an investigation was initiated with regards to the homosexual acts between the applicant and a non-commissioned officer in his unit where the applicant outlines a very detailed description of the sexual activities that took place between 2 January 1958 and December 1959. c. On 29 April 1960, a psychiatric evaluation was conducted on the applicant where the diagnosis was found to be that the applicant was a sexual deviate, overt, homosexual. It was recommended that the Soldier be separated from the military because of undesirable habits and traits of character. d. His record is void of his commanders notification of his intent to initiate separation proceedings against the applicant under the provisions of Army Regulation (AR) 635-89 (Personnel Separations - Homosexuals), but the applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf e. On 10 May 1960, his chain of command initiated the request for discharge under the provisions of AR 635-89 and recommended approval specifically for the results received from the applicant’s psychiatric study. f. Consistent with the chain of command's recommendation, on 24 May 1960, the separation authority approved his discharge under the provisions of AR 635-89 and directed the issuance of an undesirable discharge (under other than honorable conditions discharge). g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 May 1960 under the provisions of AR 635-89, and given a characterization of under other than honorable conditions discharge. It also shows he had 1 year, 7 months, and 16 days of active service with no lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. 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. 7. 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 8. 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, 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 25 May 1960 showing in: * item 24 (Characterization of Service): Honorable * 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013042 6 1