ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180004506 APPLICANT REQUESTS: an upgrade of her uncharacterized 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 she did not wish to be discharged, but was discharged for admission of homosexuality. She believes that she was never given the opportunity to prove herself in the Army. She express her desire to remain in the Army, but not wanting to hide who she was or at the risk of going to Leavenworth for possible future behavior (see attached). 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 2 November 1983. b. On 10 November 1983, she provided a sworn statement attesting to being a homosexual. She understood the U.S. Army would not accept her and due to the stress over her sexuality, she was unable to perform her duties. She requested discharge from the Army. c. On 17 November 1983, the applicant’s immediate commander notified her that discharge action was being initiated against her for admission of homosexuality and in accordance with chapter 15 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations). d. The applicant acknowledged receipt of the notification of his proposed discharge action. She refused to consult with legal counsel on 17 November 1983 and waived consideration for her case to be heard by a board of officers. She elected not to submit a statement on her own behalf and acknowledged: * she can expect to encounter substantial prejudice in civilian life because of the general under honorable conditions discharge * many or all benefits administered by the Veterans Administration and she may be deprived of rights and benefits as a Veteran under both Federal and State laws e. Subsequent to the applicant's acknowledgement, her immediate commander recommended separation action against her under the provisions of chapter 14 of AR 635-200 due to admission of homosexuality. The immediate commander chain of command recommended approval of the separation action. f. Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, on 30 November 1983, the separation authority approved the separation and ordered the applicant discharged for admission of homosexuality under AR 635-200 and directed an Entry-Level, Uncharacterized discharge. g. On 5 December 1993, she was discharged from active duty. Her DD Form 214 shows she was discharged with an uncharacterized characterization of service by reason of admission of homosexuality/bisexuality under provisions of chapter 15 of AR 635-200. She completed 1 month and 4 days of active service. 4. By regulation (635-200), 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. 5. 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 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 5 December 1993 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 at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 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. 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. An uncharacterized entry level discharge is neither positive nor negative; it is not “derogatory.” An uncharacterized character of service is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004506 4 1