ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180003214 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge. 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 he believes the record was too unjust. He believes he was discharged for suspicion of homosexuality. He served honorable and he recently learned it was possible to correct his discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 May 1953. b. His DA Form 458 (Charge Sheet) indicates court-martial charges were preferred against the applicant on 14 December 1954: ? specification 1,committing sodomy with Mr. X____ ? specification 2, committing sodomy with Mr. X____ ? specification 3, committing sodomy with Lieutenant X____ ? specification 4, committing sodomy with Private First Class X____ c. The applicant’s service record is void of complete discharge proceedings and unavailable for Board review. d. On 14 December 1954, the applicant signed a statement accepting an undesirable discharge under the provisions of Army Regulation (AR) 600-443 a. (Separation of Homosexuals), for the good of the service to escape trial by general court-martial. The witnessing officer on his statement was Lieutenant Colonel CHM. He acknowledged the following: ? he understood that his separation from the Army effected by undesirable discharge will be under conditions other than honorable ? he may be deprived of many rights as a veteran under both Federal and State Legislation ? he may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received there/from may have a bearing f. In January 1955, the Army Personnel Board determined the applicant was a class II homosexual. The Army Personnel Board recommended the applicant be discharged from the service and furnished with an undesirable discharge. g. On 11 January 1955, The Adjutant General Department of Washington D.C. directed the applicant’s undesirable discharge under the provisions of Paragraph 2 of AR 635-205 (Discharge and Release Convenience of The Government) and AR 600-443. h. On 17January 1955, the applicant received a medical and mental evaluation and was found within normal limits. He was cleared for any administrative action deemed appropriate by command. i. On 19 January 1955, he was discharged from active duty. His DD 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged in accordance with AR 635-205 and AR 600-443, with an undesirable characterization of service. He completed 1 year, 8 months and 19 days of net active service. He was awarded or authorized the National Defense Service Medal. 4. 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. 5. By regulation, AR 635-205, set forth the conditions under which enlisted personnel of the Army may be discharged or released from active military service, or released from military control, for the convenience of the Government. 6. By regulation AR 600-443, true, confirmed, or habitual homosexual personnel, irrespective of sex, will not be permitted to serve in the Army in any capacity and prompt separation of known homosexuals from the Army is mandatory. 1. * Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud * Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I * Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service 7. 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 8. 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 the justification provided by the chain of command for the applicant’s separation and a change in policy concerning homosexual conduct in the military, the Board concluded that upgrading the characterization of service, changing the narrative reason for separation, changing the separation code and changing the RE code 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 reissuing the applicant a DD Form 214 showing: * characterization of service as “Honorable * narrative reason as “Secretarial Authority” * separation code as “JFF” * reentry (RE) code as “1” 7/25/2019 X CHAIRPERSON Signed by: 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 635-205 (Discharge and Release Convenience of the Government), in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government. Paragraph 2 stated, in pertinent part, that separation of enlisted personnel was the prerogative of the Secretary of the Army and would be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for convenience of the Government would be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority could be given either in an individual case or by an order applicable to all cases specified in such order. 3. Army Regulation 600-443 (Discharge of Homosexuals), in effect at the time, set forth the authority and prescribed procedures whereby homosexual personnel will be investigated and discharged from the Army. Separation mandatory for true, confirmed, or habitual homosexual personnel, irrespective of sex, will not be permitted to serve in the Army in any capacity and prompt separation of known homosexuals from the Army is mandatory. 4. Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. Homosexuals were divided into three classes. Class I included those cases which involved an invasion of the rights of another person as where the homosexual act was accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service. Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively. 5. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, 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 a. 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. 6. The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency. 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. 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" (Separation Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 7. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) there were no aggravating factors in the record, such as misconduct. 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 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 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. 1. 8. 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 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. The 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 on the basis of equity, an injustice, or clemency 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.