ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20170014766 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 it was recently brought to his attention that he is eligible for an upgrade due to the repeal of “Don't Ask Don't Tell (DADT)” from 20 September 2011. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 9 September 1982. b. DA Form 2800 (Criminal Investigation Division (CID) Report of Investigation (ROI)), final report, dated 28 March 1984, states the applicant admitted to having sexual relations with another unknown male, which included oral sex and mutual masturbation, which occurred in Seattle, WA. The CID ROI, two CID Form 94s (Agent’s Investigation Report), and two DA Form 2823’s (Sworn Statements) (one from the applicant admitting to sexual relations with another male) are enclosed in the packet for review. c. On 28 March 1984, his immediate commander counseled him on DA Form 4856 (General Counseling Form). He informed the applicant that the CID report was complete and showed that the [applicant] had homosexual tendencies according to the sworn statement made by the [applicant]. d. On 28 March 1984, a mental status evaluation was conducted. The examiner determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible. He was psychiatrically cleared for any action deemed appropriate by his command. e. On 13 April 1984, his immediate commander notified him of his intent to initiate action to eliminate him under the provisions of chapter 15, AR 635-200 (Personnel Separations-Enlisted Personnel), for homosexuality. He advised him of the following: * submit statements on his own behalf * present his case by a board of officers and be represented by an attorney at the board * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * represented by an officer of the judge advocate general’s corps or civilian attorney at no expense to the government * waive any of the above rights f. On 13 April 1984, he was accorded the opportunity to consult with appointed counsel for consultation; or military counsel of his own choice, if he/she was reasonably available; or civilian counsel at his own expense. He declined the opportunity. He did not submit a statement on his behalf. He acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood if he received a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realized that consideration by either board does not imply that his discharge would be upgraded * he understands that he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge g. On 13 April 1984, his immediate and intermediate commanders recommended separation action against him for homosexuality. h. On 26 April 1984, the separation authority directed the applicant be discharged from the military service under the provisions of chapter 15, AR 635-200, for homosexuality with a general discharge certificate, and separation program designator code of JRB. Rehabilitation required by paragraph 1-18, AR 635-200, were waived in accordance with paragraph 1-19, AR 635-200. i. On 8 May 1984, he was discharged from active duty under the provisions of paragraph 15-3b, AR 635-200 with an under honorable conditions (general) discharge. He completed 2 years and 3 months of active service. His DD Form 214 shows he was awarded or authorized Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge (M-16). j. 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. 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. 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, the Board determined relief was warranted. The applicant’s 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 misconduct. Based upon the facts and circumstances which led to the applicant’s separation and a change in DoD policy related to those circumstances, the Board concluded that upgrading the characterization of service to Honorable was appropriate. Additionally, based upon the change in policy, the Board recommended to change the separation authority, separation code, reenlistment code and narrative reason as well. 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, for the period ending 8 May 1984, to show: * (Item 24) character of service as "Honorable" * (Item 25) separation authority as “AR 635-200” * (Item 26) separation code as “JFF” * (Item 27) reenlistment code as “1” * (Item 28) narrative reason for separation as “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, 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 (Personnel Separations-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. 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. Nothing Follows ABCMR Record of Proceedings (cont) AR20170014766 4 1