ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180005319 APPLICANT REQUESTS: an upgrade to his 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 he was a 17 year old recruit in basic training when he went to the Judge Advocate General office to tell then that he was gay. When he returned to his company, he was told to report to the non-commissioned officer who then took him to see the Chaplain. He was told to request a discharge or face a court-martial and a dishonorable discharge. He had a back injury in training and thought his discharge would read “unable to complete training” as the reason for his discharge. This all happened before the current regulations and he now understands that he can request an upgrade. 3. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 8 December 2000. b. On 20 July 2001, the applicant was counseled for a verbal statement he made to his chain of commanding regarding his homosexual conduct. In his counseling, it was made clear to the applicant that his commander was initiating separation action under the provisions of Army Regulation (AR) 635-200, Chapter 15 (Discharge for Homosexual Conduct). c. On 20 July 2001, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of AR 635-200 Chapter 15 for homosexual conduct. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. d. He acknowledged the letter of notification from his commander and did not wish to consult with counsel, but he did submit a statement on his behalf. e. On 20 July 2001, the applicant was recommended for separation and consistent with the chain of commands recommendation, the separation authority approved his separation and directed the applicant receive an uncharacterized character of service discharge. f. The applicant was discharged on 18 September 2001, under the provisions of AR 635-200, Chapter 15 for homosexual conduct and issued an uncharacterized character of service discharge. His NGB Form 22E (Department of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service), shows he completed 8 months and 16 days of active service with no lost time 4. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 5. Army Regulation 635-89 (Homosexuality), in effect at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 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 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 submissions 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 concerning homosexual conduct in the Army Forces, the Board recommended that the characterization, narrative reason, separation code and the reentry code of the applicant’s discharge should all be modified. 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 for separation as “Secretarial Authority” * separation code as “JFF” * reentry (RE) code as “1” 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. AR 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. Army Regulation 635-89 (Homosexuality), 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. 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, United States 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 Don't Ask, Don't Tell (DADT) or prior policies. a. 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 b 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 c 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. d. 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, DD regulations implementing various aspects of DADT [or prior policies] were valid regulations during that 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. ABCMR Record of Proceedings (cont) AR20180005319 2 1