ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170016843 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Attorney * DD Form 214 (Armed forces of the United States Report of Transfer or Discharge) 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 would like his character of served changed to an honorable and the narrative reason for discharge should be Secretarial Authority code JFF and RE Code changed to immediate reenlistment. 3. His attorney Mr. X----- states the applicant was discharged from the Army under an other than honorable discharge due to homosexuality with no aggravating factors and has newly become aware of his ability to request a correction of his character of discharge. He is requesting this change not only for Veterans benefits and not so he can re-enlist, but for his honor. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 October 1962. b. He accepted non-judicial punishment on 12 April 1963 for not returning from his authorized leave early. His punishment consisted of being reduced to E-1. c. On 1 May 1963, he was diagnosed as a sexual deviate (homosexuality) overt. d. On 6 May 1963, he received an oral reprimand for not reporting to a scheduled formation. e. On 14 May 1963, the applicant was notified by his commander that he was being recommended for discharge under the provisions of Army Regulations 635-89 (Personnel Separations Homosexuals), paragraph 13 in effect at the time for homosexual activity. f. On 14 May 1963, the applicant was counseled and he acknowledged receipt of the recommendation for discharge. Military counsel was made available to him and he elected to waive counsel. He waived his rights to a hearing before a board of officers and did not submit statements on his own behalf. He did understand: * if the discharge authority approves the recommendation for discharge he will determine the type of discharge to be issued * he would not be given another opportunity to appear before a board of officers before being discharged * if a general discharge was issued it may be under honorable conditions * he may expect to encounter prejudice in civilian life depending on the type of discharge issued to him * if an undesirable discharge was issued it would be under conditions other than honorable * he may be deprived of many or all rights as a veteran under both Federal and State laws g. On 27 May 1963, the approval authority approved the recommendation for discharge under the provisions of Army Regulation 635-89, paragraph 13. The applicant was reduced to the lowest pay grade E-1. h. On 31 May 1963, the applicant was discharged with an under other than honorable conditions discharge. His DD 214 shows he served 8 months of active duty and was awarded the Sharpshooter Qualification Badge (M-1) with Rifle Bar. 5. AR 635-89, paragraph 13, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 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. 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 31 May 1963 showing in: * item 13a (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 (AR) 635-89 (Personnel Separations Homosexuals) 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 consisted of those cases which involve an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate in or consent to the homosexual act, or if the act is cooperated in or consented to, where the cooperation or consent was obtained by fraud, Class II consisted of those cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I during active military service, Class III consisted of those cases in which the homosexual individual involved has not engaged in a homosexual act during active military service, and those cases otherwise within the purview of the regulation but not falling within the purview of class I or II. Upon determination that the enlisted person is to be discharged from the service with an undesirable discharge under the provisions of this regulation, the authority accomplishing the discharge, will, if the individual concerned is in grade above E-1, automatically reduce such individual to grade E-1. 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, 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) AR20170016843 0 4 1