ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  26 September 2019

	DOCKET NUMBER:  AR20170015275


APPLICANT REQUESTS:  to change the narrative reason for separation and 
upgrade her under honorable conditions discharge. 

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 (ABCMR) 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 the laws have changed and believes the narrative reason of 
discharge is discriminatory and should be changed to completion of service.

3.  The applicant provides the above referenced documents.

4.  A review of the applicant’s service record shows:

	a.  She enlisted in the Regular Army on 12 June 1980. 

	b.  On 22 September 1982, she provided a sworn statement attesting to her 
homosexual conduct while in the Army.  She explained that while assigned to her 
first duty location, she experienced her first lesbian encounter and soon began to 
frequent gay bars and other establishments in the community.  She soon found it to 
be increasingly difficult to fulfill her obligations to the U.S. Army and lead a private 
life as a homosexual.  She intended no discredit to the Army nor her fellow Soldiers.

	c.  On 22 September 1982, the applicant’s immediate commander notified her 
that discharge action was being initiated against her for admission of homosexuality 
and in accordance with Army Regulation (AR) 635-200 (Personnel Separations – 
Enlisted Separations), Chapter 15, Separation for Homosexuality, in effect at the 
time, for admission of homosexuality.

	d.  On 23 September 1982, the applicant acknowledged receipt of the 
commander’s intent to separate her.  She waived consultation with counsel and 
acknowledged:

*	she can expect to encounter substantial prejudice in civilian life if a 
general discharge under honorable conditions is issued to her
*	if she received a discharge certificate/character of service which is less 
than honorable, she could make an application to the Army Discharge 
Review Board or Army Board for Correction of Military Records, however, 
she realizes that an act of consideration by either board does not imply 
that her discharge will be upgraded
     
	e.  On 24 September 1982, the immediate commander recommended separation 
action against her for admission of homosexuality.  The chain of command 
recommended approval. 

	f.  On 18 November 1982, consistent with the chain of command's 
recommendations, the separation authority approved the separation and ordered the 
applicant discharged under AR 635-200, Chapter 15, Separation for Homosexuality, 
in effect at the time, for admission of homosexuality and directed the issuance of a 
General Discharge Certificate.

	g.  On 24 November 1982, she was discharged from active duty.  Her DD Form 
214 shows she was discharged with an under honorable conditions characterization 
of service with the narrative reason for separation listed as admission of 
homosexuality/bisexuality.  She completed 2 years, 5 months, and 13 days of net 
active service.  It also shows she was awarded or authorized Army Service Ribbon 
and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  There is no evidence the applicant has applied to the Army Discharge Review 
Board for review of her discharge within that board's 15-year statute of limitations.

6.  By regulation (635-200), homosexuality is incompatible with military service.  
Military members who engage in homosexual conduct or who, by their statements, 
demonstrate a tendency to engage in homosexual conduct, seriously impair the 
accomplishment of the mission.  The type of discharge will reflect the character of 
the member’s service.

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

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief 
was warranted.  Board members felt her discharge for homosexuality complied with 
the laws and regulations in effect at the time.  The characterization of his service 
was commensurate with the reason for her discharge in accordance with the 
governing regulations in effect at the time.  However, laws and regulation change.  
Due to repeal of DADT, Board members felt since there is no misconduct or any 
aggravating factors and since the original discharge is based on homosexual 
admission, Board members voted unanimously to grant full relief.   

   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 her a new DD Form 214 to show she was discharged with an 
honorable character of service by reason of Secretarial Authority with an SPD 
code of JFF and an RE code of 1 effective 24 November 1982
*	issuing her an Honorable Discharge Certificate

	  
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 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 635-200 (Personnel Separations – Enlisted Personnel), in effect 
at the time, provides for separation of enlisted personnel.  

   a.  Paragraph 3-7(a) (Honorable Discharge) states an honorable discharge is a 
separation with honor.  The honorable characterization is appropriate when the 
quality of the soldier’s service generally has met the standards of acceptable 
conduct and performance of duty for Army personnel or is otherwise so meritorious 
that any characterization would be clearly in appropriate.

	b.  Chapter 15 of this regulation states homosexuality is incompatible with military 
service.  Military members who engage in homosexual conduct or who, by their 
statements, demonstrate a tendency to engage in homosexual conduct, seriously 
impair the accomplishment of the mission.  The type of discharge will reflect the 
character of the member’s service.


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)	 AR20170015275

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