SAMR-RB 23 July 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202- 3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings , AR20170019201 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 10 May 2018, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as honorable and showing the narrative reason for his separation as "Secretarial Authority" with the appropriate regulatory authority and separation code. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 23 November 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20170019201 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20170019201 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20170019201 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: * an upgrade of his undesirable discharge to an honorable discharge * a change to the narrative reason for his discharge to “Secretarial Authority” * correction of his separation code to show “JFF” * a change in his reenlistment (RE) code to show “RE-1” 2. The applicant states: He enlisted in the Army under the Army Specialized Training Program, because of his good high school grades and intelligence, at 17 years of age. b. He visited the doctors to be cured of his homosexual urges and tendencies indicating he did not want a discharge from service. The doctors informed him there was no cure for him and that he would be discharged from the service. c. He never had an incident in the Army and just wanted to see if something could be done to stop his homosexual urges. d. He was put out of the Army never knowing he was assigned an unsatisfactory discharge. 3. The applicant provides: * self-authored statement * Privacy Act statement * letter of support * Certification of Military Service * Under Secretary of Defense Letter, dated 20 September 2011 * National Personnel Records Center Letter, dated 1 July 2013 * WD AGO Form 53-56 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant’s military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. However, he provides copies of his WD AGO Form 53-56 (Enlisted Record and Report of Separation – Discharge from the Army of the United States) and Certification of Military Service. In addition, his reconstructed record contains his WD AGO Form 891 (Final Payment Roll). These documents are sufficient for the Board to conduct a fair and impartial review of this case. 3. The applicant’s WD AGO Form 53-56 shows: a. He enlisted in the Enlisted Reserve Corps on 18 May 1943 and entered active duty on 13 November 1943. b. He was trained in and awarded military occupational specialty 745 (Rifleman). c. On 5 July 1945, he was discharged from the ERC under the provisions of Army Regulation 615-368 and was not eligible for reenlistment, induction, or re- induction. Item 55 (Remarks) contains the entries “Habits and traits of character rendering retention in the service undesirable” and “Disqualified in character for service through his own misconduct.” d. He completed 1 year, 7 months, and 23 days of creditable active service of which 56 days was lost time under Articles of War Number 107. 4. The Certification of Military Service provided by the applicant shows that he received an undesirable discharge. 5. The applicant’s reconstructed records contain a WD AGO Form 891 showing his final pay. It also shows he was discharged under the provisions of AR 615- 368 by reason of “traits of character rendering retention in military service undesirable.” 6. The complete facts and circumstances surrounding his discharge processing are not available for review with this case. REFERENCES: 1. Army Regulation 615-368, in effect at the time, set forth the policy for administrative separation for unfitness. It stated that: a. Individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) evidence of habits or traits of character manifested by antisocial or amoral trends, criminalism, chronic alcoholism, drug addition, pathological lying, or sexual misconduct in the service which serve to render his retention in the service undesirable (b) unclean habits, (c) repeatedly committed petty offenses not warranting trial by court-martial, (d) was a habitual shirker, or (e) was recommended for discharge by a board of officers. This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances. b. Homosexual offenses were included in the criminal denunciation of Article of War 93. However, it was a concern of the War Department whether the maintenance of discipline and the interests of the Military Establishment were best served by trial by court-martial or by prompt elimination of the offender from the service under these regulations. c. The policy of the War Department was that enlisted personnel who were discharged because of homosexual tendencies, but who had not committed a homosexual offense while in the service, would normally be discharged as undesirable. If the individual had been on active duty for a considerable period of time and during such period performed his duty in an honest and faithful manner without having committed any offense of a nature related to his homosexuality, he could, as a matter of discretion, be given a general discharge or an honorable discharge in cases in which the man's military record was especially meritorious. d. This policy should by no means be interpreted as implying that all confessed homosexuals should be discharged merely because of a confession of homosexuality. There should be adequate evidence of an existing psychological maladjustment resulting from homosexual tendencies, which render the individual inadaptable for military service. In those relatively rare instances where homosexual tendencies constitute symptoms of a psychiatric disorder such as psychoneurosis and psychosis, disposition should be based upon the underlying psychiatric disorder. The disposition of any particular case was left to the discretion of the officer exercising general court-martial jurisdiction. All persons discharged under the provisions of this regulation were to be furnished a WD AGO Form 53-56. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. 3. Army Regulation 635-200, 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. 4. 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. 5. 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 SPD code JFF * characterization of the service to honorable * 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: * 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 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. 8. 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 actions. DISCUSSION: 1. The applicant’s record is void of the complete facts and circumstances surrounding his discharge action. His WD AGO Form 53-56 confirms he was discharged under the provisions of Army Regulation 615-368 due to “habits and traits of character rendering retention in the service undesirable,” and he was “disqualified in character for service through his own misconduct” and deemed ineligible for reenlistment, induction, or re-induction. 2. In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations in effect at the time with no indication of procedural errors, which would have jeopardized his rights. It is also presumed his discharge complied with the laws and regulations in effect at the time and that the characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time. 3. The evidence of record show the applicant was discharged for “Habits and traits of character rendering retention in the service undesirable” and “Disqualified in character for service through his own misconduct” and that he had 56 days of lost time. a. There is no evidence to outline the specific incident or reasons leading to his discharge or why he has lost time. b. The only evidence available shows that the reason for the discharge was due to his own misconduct. c. The evidence of record neither supports nor disproves the applicant's contention that he was discharged for admitting he had homosexual urges. 4. The fact that DADT has been repealed and homosexuals may now serve openly in the Armed Forces does not invalidate prior discharge actions that were properly based on regulations in effect at the time of the discharge. 5. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011 states that for upgrades 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 6. The Board must determine whether the applicant's discharge meets the criteria for an upgrade as stipulated in the Under Secretary's memorandum. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019201 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170019201 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2