ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20170018065 APPLICANT REQUESTS: * an upgrade to his under other than honorable conditions discharge to an honorable discharge * his DD Form 214 (Certificate of Release or Discharge from Active Duty) to read high school graduate * his contribution to Post-Vietnam Era Veteran’s Education Assistance Program (VEAP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Self-Authored Statement * DD Form 214 * Request Pertaining to Military Records 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 justice was not served. He contribute to the VEAP and did not receive his contributions. 3. The applicant provides a self-authored statement stating, under current policy, he believe this decision is unjust and request that it be removed from his record and he be upgraded to general under honorable conditions or honorable. He is proud to have served, but this decision precluded him from receiving veteran’s benefits, and as a result he is currently homeless and unable to move on with his life. He does not feel that he received the process due in that he did not understand why he was being discharge or received representation by counsel. 4. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserve Delayed Entry Program, he enlisted in the Regular Army on 17 June 1980. b. He was counseled on various offenses to include reading a book not related to Army doing Army time, disrespectful to a commanding officer, job performance, failed to make nightly communication checks, unsatisfactory performance, attitude, and failure to repair. c. The applicant a letter of reprimand on 19 July 1982, for failure to repair. d. The sworn statements shows that a criminal investigation was conducted by the Frankfurt, Germany criminal investigation division on 29 July 1982. The applicant admitted to being engaged in sexual acts with males prior to enlistment and during enlistment from May to June 1982. e. He underwent a psychiatric evaluation on 29 July 1982, and diagnosed with anxiety reaction, no significant psychological findings, the potential for retention in Service was ordinary. f. On 6 August 1982, the commander, notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 15 for misconduct due to homosexuality. He advised him of his rights: * to consult with counsel, to be represented at any hearing by appointed counsel for representation, military counsel of his own choice, of civilian counsel at his own expense * to appear and present his case before an administrative separation board * to submit a statement in his own behalf g. On 9 August 1982, the applicant after being advised by counsel of the basic contemplated separation and its effect, the rights available to him and the effect of a waiver of his right: * he waived his right for consideration of his case by a board of officer * he waived his right to a personal appearance before a board of officer * he elected not to submit statements on his own behalf * he waived his right consulting counsel and representation by counsel for representation, or us military counsel and civilian counsel at no expense to the government h. On 9 August 1982, the unit commander recommended the applicant for separation for misconduct, due to homosexuality. i. He underwent a medical examination on 13 August 1982. j. Consistent with the immediate and intermediate chain of command recommendation, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 15, for failure homosexuality. He directed that the applicant be issued an under other than honorable conditions discharge certificate. His separation program designator (SPD) JKC, reenlistment eligibility (RE) code 3 applied and reduced to E-1. k. The applicant was discharged from Army on 15 October 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 15, for failure homosexuality, and his service characterization is under other than honorable conditions. He completed a period of 2 years, 3 months and 29 days net active service. He had no lost time. 5. AR 635-200 states 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. a. When a Board grants relief, in these cases to change the: * narrative reason for discharge to “Secretarial Authority” with a SPD code of JFF * characterization of service to honorable * the reentry eligibility (RE) code to an immediately eligible to reenter category b. 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. AR 635-5-1 (Personnel Separations-Separation Program Designators), states that the separation program number (SPN) code is used in statistical accounting to represent the reason for separation. 8. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the form should be complete and accurate. Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that: * item 15a shows a yes or no entry, if a Soldier contributed to VEAP and did not get money back, mark "Yes" * item 15b shows yes or no entry, if a Soldier is a high School graduate or equivalent indicate with an “X” in the appropriate box * the applicant’s Department of Defense Form 1966/2, item 22c shows “no” as a high school graduate * his DD Form 1966/8 it shows in item 44a, a change was required for his education code to read 12th completed prior to entering. * his DA Form 2-1 (Personnel Qualification Records, Part II) item 17, shows 11th grade completed * his DA Form 2 (Personnel Qualification Record, Part I) a hand written correction was made but not updated in systems. 9. 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. 10. In reaching its determination, the Board can consider the applicant's petition and his service record 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. The applicant’s DD Form 214 clearly shows VEAP is marked with “XX” in the “Yes” block indicating he contributed to the program. The Board determined there is no change needed for that portion of his request. Finally, prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 15 October 1982 showing in: * item 4a (Grade, Rate or Rank) PFC * item 4b (Pay Grade) E3 * item 12h (Effective Date of Pay Grade) “80 06 17” * item 16 (High School Graduate or Equivalent) “Yes” * 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 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to VEAP. 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): A review of the applicant’s records shows his DD Form 214 has an administrative error in item 16 “High School Graduate or Equivalent”. As a result, amend the DD Form 214 by correcting in item 16 “High School Graduate or Equivalent” to reflect “Yes”. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. 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 15-1a, 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 military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of members who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security. d. Paragraph 15-4, states when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted. 3. 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. 4. 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) AR20170018065 6 1