ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170014809 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions 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 was discharged because he was homosexual. Homosexual can now serve proudly without stigma or fear. He was a good Soldier, but was discharged because he was a homosexual. 3. A review of his service records shows: a. He enlisted in the Regular Army on 28 August 1980 for a period of four years. b. He served in Greece from 19 September 1982 to 18 September 1983. c. On 23 December 1985, he accepted nonjudicial punishment for wrongful use of marijuana between 22 September 1985 and 2 October 1985. d. On 7 January 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation (AR) 635-200 (Personnel Separations) for homosexuality. The specific reason for the discharge was that the applicant stated he was a homosexual. e. On 7 January 1986, the applicant acknowledged receipt of the commander's notification. He was advised of the basis for the contemplated separation action for a. homosexuality, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. * he waived his right to counsel * he elected not to submit statements in his behalf * he understood a general discharge under honorable conditions was the least favorable characterization of service he could receive * he acknowledged he could encounter prejudice in civilian life if a general discharge under honorable conditions was issued * he understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after his discharge f. On 8 January 1986, his immediate commander initiated separation action against him in accordance with paragraph 15-3, AR 635-200. His intermediate commander recommended discharge. g. On 22 January 1986, consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge with a General Discharge Certificate. h. On 19 February 1986, the applicant was discharged under the provisions of AR 635-200, chapter 15-3b. The DD Form 214 shows he completed 5 years, 5 months, and 22 days of active service. It also shows he in: * item 24 (Character of Service), Under Honorable Conditions * item 25 (Separation Authority), paragraph 15-3b, AR 635-200 * item 26 (Separation Code), JRB * item 27 (Reenlistment Code), RE-4 * item 28 (Narrative Reason for Separation), Admission of homosexuality 4. By regulation, in effect at the time, commanders were authorized to order separation for homosexuality. 5. Department of Defense guidance, effective 20 September 2011, states military review boards should normally grant requests to change the narrative reason for discharge, requests to re-characterize the discharge to honorable, and/or requests to change the reentry code to an immediately eligible to reenter category when both of the following conditions are 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 policy relating homosexuality in the Armed Forces, which was the sole reason stated for the discharge, the Board concluded there was sufficient evidence to upgrade the characterization of service to Honorable. 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: "Honorable"; Narrative Reason for Separation: "Secretarial Authority" Separation Code: "JFF" Reentry (RE) Code: "1" 4/29/2019 X CHAIRPERSON Signed by: 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed the policies, standards, and procedures to ensure readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious, to warrant an honorable discharge. c. Paragraph 15-2 (Discharge policy) states homosexual conduct is grounds for separation from the Army under the criteria in paragraph 15-3. d. Paragraph 15-3 (Criteria for discharge) states, in pertinent part, a Soldier will be discharged if the Soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is further approved finding that the Soldier has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribes that SPD code JRB is the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 1. 4. The "Don't Ask, Don't Tell" 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. 5. 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 (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 DADT or prior policies. 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 6. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) 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 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 those 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.