ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 August 2019

	DOCKET NUMBER:  AR20170019558


APPLICANT REQUESTS:  change the narrative reason for separation and separation authority

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:   
DD Form 149 (Application for Correction of Military Record)

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 at the time of the implementation of Don’t Ask Don’t Tell repeal he did not have a personal need or desire to undertake correction of the injustice.  He is requesting to have the narrative reason for separation and separation authority changed to have this personal blemish and condemnation removed from his military records.

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

a.  He enlisted in the Regular Army on 11 August 2000.
   
   b.  On 7 September 2000, the applicant was notified by his unit commander of the intent to separate him from the service under the provisions of chapter 15 (Discharge for Homosexual Conduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with the recommendation of an entry level separation (uncharacterized).

   c. On 7 September 2000, the applicant received a mental health evaluation and it was determined that there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity.  He was cleared for administrative actions deemed appropriate by the command.

   d.  On 7 September 2000, the applicant’s unit commander initiated separation under the provisions of chapter 15, AR 635-200.

   e. On 8 September 2000, the applicant acknowledged the initiation of separation under provisions of chapter 15, AR 635-200:

* waived consideration by an administrative board
* he did not submit statements in his own behalf
* he was afforded the opportunity to consult with legal counsel
* he made request of his own free will and was not subjected to coercion
* he may withdraw waiver up to the date of discharge
* if referred to an administrative separation board; he requests personal appearance and representation by legal counsel
* he may encounter substantial prejudice in civilian life if issued a general under honorable conditions characterization
* he may submit a request to upgrade his discharge to the Army Discharge Review Board or Army Board for Corrections of Military Records
* he understood that consideration by the Boards does not imply the discharge will be upgraded
* he was ineligible to enlist in the U.S. Army for a period of 2 years after discharge

   f.  On 21 September 2000, the applicant’s unit commander recommended that he be separation under provisions of chapter 15, AR 635-200 because he voluntarily admitted to homosexuality.

   g.  On 21 September 2000, the applicant’s battalion commander recommended that he be separated under provisions of chapter 15, AR 635-200 because he admitted to homosexuality and recommended that he receive an uncharacterized service.

   h.  On 26 September 2000, the separation authority approved the applicant’s separation under provisions of chapter 15, AR 635—200 and he received an entry level separation with an uncharacterized discharge.

   i.  He was discharged on 29 September 2000 under the provisions of paragraph 15-3b, AR 635-200 with an uncharacterized service.  His DD Form 214 shows that he completed 1 month and 19 days of net active service.

4.  There is no evidence the applicant applied to the ADRB within its 15-year statute.

5.  By regulation 635-200, states that homosexual conduct is grounds for separation from the Army under the criteria set forth in paragraph 15-3.  This included pre-service, prior service, or current service homosexual conduct.

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 "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

7. The Board should 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.

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 29 September 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.

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 635-200, chapter 15 in effect at the time, homosexual conduct is grounds for separation from the Army under the criteria set forth in paragraph 15-3.  This included pre-service, prior service, or current service homosexual conduct.  The term homosexual conduct includes homosexual acts, a statement by the Soldier that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage.  A statement by the Soldier that demonstrates a propensity or intent to engage in homosexual acts is grounds for discharge not because it reflects the Soldier’s sexual orientation, but because the statement indicates a likelihood that the Soldier engages in or will engage in homosexual acts.  A Soldier’s sexual orientation is considered a personal and private matter, and is not a bar to continued service unless manifested by homosexual conduct.


Paragraph 15-3b, the Soldier has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  A statement by the Soldier that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the Soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The Soldier shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he or she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.  The Soldier bears the burden of rebutting the presumption.

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.

7.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170019558


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