ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180000553 APPLICANT REQUESTS: upgrade of her general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction to DD Form 214) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, at the time she was discharged in 1977, if you were a homosexual you were considered unsuitable for military duty. Today, homosexuality is no longer a suitability issue; she is hopeful her discharge status can be upgraded. She did not think much about the conditions of her discharge until she recently tried to purchase car insurance through USAA (United Services Automobile Association); she was denied due to her general discharge. Since her discharge, she has not been in any trouble; she now works for her State's Children and Family Services department. 3. The applicant's service record shows: a. She enlisted into the Regular Army on 9 July 1974 for a 3-year term. Following initial training, orders assigned her to Fort Lewis, WA; she arrived on 2 December 1974. Her chain of command promoted her to specialist four (SP4)/E-4, effective 6 February 1976. b. On two occasions, she accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice: a. * 8 July 1976 – wrongfully appear off-post in a fatigue uniform * 21 October 1976 – absent without leave from 18 until 19 October 1976; punishment included reduction to private first class (PFC)/E-3 c. On 8 December 1976, the supporting Mental Hygiene Community Service prepared a mental status evaluation of the applicant; a medical doctor diagnosed the applicant as having a passive-dependent personality with features of immaturity and homosexual tendencies. The doctor further stated the applicant's problems were not amenable to any form of punishment, retraining, or other forms of rehabilitation; due to the severity of the applicant's situation, separation was strongly recommended. d. On 13 December 1976, the applicant's commander advised her in writing his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Separation for Unfitness or Unsuitability), paragraph 13-5b (5) (Unsuitability – Homosexuality (homosexual tendencies, desires, or interest without overt homosexual acts)). e. On 17 December 1976, after consulting with counsel, the applicant acknowledged counsel had explained the basis for the separation action, and advised her of the rights available and the effects of waiving those rights. She waived her rights and opted not to submit a statement in her own behalf. f. On 27 December 1976, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions by reason of unsuitability; on 5 January 1977, she was discharged accordingly. Her DD Form 214 shows she completed 1 year, 5 months, and 27 days of her 3-year enlistment. She was awarded or authorized the National Defense Service Medal. g. On 22 February 1977, the applicant petitioned the ABCMR to correct her DD Form 214 so that is accurately stated her service. On 11 April 1977, the Office of the Adjutant General, Reserve Components Personnel and Administration Center issued corrections a DD Form 215. 4. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating service members based on their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and Readiness) issued guidance stating Boards should normally grant requests for character of service upgrades when the former Soldier's separation was due to DADT or a similar earlier policy. The guidance authorized Boards to amend the Soldier's narrative reason for discharge, modify their character of service to honorable, and change the reentry (RE) code to reflect immediate eligibility for reentry. For the above upgrades to be warranted, the original discharge had to be based solely on DADT (or a similar policy in place prior to enactment of DADT), and no other aggravating factors in the record, such as misconduct. 1. BOARD DISCUSSION: After review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law, the Board determined there is sufficient evidence to grant relief. The applicant was questioned about her sexual orientation and her response influenced the discharge determination. With the circumstances discussed in this case, the Board agreed it is equitable to upgrade the applicant's discharge characterization. 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: 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 following changes to the applicant's DD Form 214 was appropriate: * upgrading the characterization of service to "Honorable" * changing the narrative reason for Separation to "Secretarial Authority" * changing the separation code to "JFF" * changing the reentry (RE) code to "1" ___________X________________ Chairperson 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency a. ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. Chapter 13 established policies and procedures for the elimination of enlisted personnel who were determined to be unfit or unsuitable for continued military service. Paragraph 13-5b (5) was applicable to Soldiers who had not engaged in homosexual acts during their military service, but had a verified record of pre-service homosexual acts. 3. The Don't-Ask-Don't-Tell (DADT) policy was implemented in 1993 during the Clinton administration. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 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. 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" SPD Code JFF) * characterization of the discharge to honorable * the 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 and 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 1. regulations during those 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//