ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20170016951 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 October 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he was bullied by his commanding officer and noncommissioned officer into taking a discharge. He was threatened with extra duty and physical harm. 3. The applicant enlisted in the Regular Army on 11 January 2000. He completed training as a light weapons infantryman. 4. The applicant was counseled on 29 June 2000, based on a conversation that had taken place with legal officials to insure the unit was following proper procedures vis-à-vis the Department of the Army (DA) policy on homosexual conduct. He was told that his command and his first sergeant were aware of the statement he made to another individual. He was told: a. If at any time he felt harassed or threatened by another Soldier, he was to bring the incident to the attention of his commander or first sergeant for appropriate action. b. His behavior was not consistent with DA policy on homosexual conduct and his actions could result in a discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, for homosexual conduct. 5. The applicant was afforded a mental health evaluation on 7 July 2000 and was cleared for any administrative action deemed appropriate by his command. 6. The applicant's immediate commander notified him on or about 27 July 2000 that he was initiating separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, by reason of homosexual conduct. 7. After being provided the option of consulting with counsel, the applicant acknowledged receipt of the notification of proposed separation. The available record does not show if the applicant submitted a statement in his own behalf. 8. The separation authority approved the applicant's discharge on 27 July 2000, under the provisions of Army Regulation 635-200, chapter 15, and directed that he receive an under honorable conditions (general) discharge. 9. The applicant was discharged on 11 August 2000. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 15-3B, for homosexual admission. His DD Form 214 further shows a separation code of "JRB" and a reentry (RE) code of "4." 10. The applicant's Official Military Personnel File is void of any Records of Nonjudicial Punishment or Court-Martial Convictions. 11. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed today’s standards of performance does not consider sexual preference as a form of misconduct. In addition to an upgrade of the discharge characterization, the Board recommends amending other appropriate separation data. 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 11 August 2000 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. ADMINISTRATIVE NOTE(S): Not Applicable 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, currently in effect, governs the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5–3 (Secretarial plenary authority) provides that: (1) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. (2) Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. d. Chapter 15 prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 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. 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. 4. The memorandum states that effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the following: * item 24 (Character of Service) to "Honorable" * item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code) to "JFF" * item 27 (Reentry Code) to "1" * item 28 (Narrative Reason for Separation) to "Secretarial Authority" 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. 7. 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 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. 8. It further directed that the DD Form 214 be reissued in lieu of the DD Form 215 (Correction of the DD Form 214), to avoid a continued record of the homosexual separation. //NOTHING FOLLOWS//