ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180011809 APPLICANT REQUESTS: a. removal of all references to sexual orientation from his discharge paperwork, including his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), per Memorandum for Secretaries of the Military Departments issued by the Under Secretary of Defense, dated 20 September 2011; b. an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable; c. correction of his reason and authority for discharge to read "Secretarial Authority"; d. correction of his separation code to read "JFF" (Secretarial Authority); and e. correction of his reentry eligibility (RE) code to read "1J." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Attorney brief * exhibit 1 – Memorandum, Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, dated 20 September 2011 * exhibit 2 – DA Form 20 (Enlisted Qualification Record) * exhibit 3 – Statement by accused or suspect, dated 9 October 1967 * exhibit 4 – DA Form 2800 (U.S. Army Criminal Investigation Division (CID) Report of Investigation), dated 16 December 1967 * exhibit 5 – Psychiatric Report, dated 12 September 1967 * exhibit 6 – DA Form 2496 (Disposition Form), dated 6 October 1967 * exhibit 7 – Statement by accused or suspect, dated 14 October 1967 * exhibit 8 – DA Form 19-24 (Statement), dated 17 October 1967 * exhibit 9 – Form 1168 (Statement), dated 21 October 1967 and DA Form 19-24 (Statement), dated 5 November 1967 * exhibit 10 – Applicant's rights, dated 27 October 1967 * exhibit 11 – Applicant advised by legal, dated 26 October 1967 * exhibit 12 – Elimination request to intermediate commander, dated 27 October 1967 * exhibit 13 – Elimination packet, chain of command and decision * exhibit 14 – DD Form 214 * exhibit 15 – Special Orders Number 360, discharge order, dated 26 December 1967 * exhibit 16 – Army Discharge Review Board, dated 19 November 1973 * exhibit 17 – DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated 22 January 1979 * exhibit 18 – Army Discharge Review Board decision, dated 18 September 1981 * exhibit 19 – ABCMR decision, dated 27 May 1991 * exhibit 20 – Army Regulation 635-89 (Personnel Separations Homosexuals) * exhibit 21 – Department of Defense (DOD) Directive Number 1304.26, dated 21 December 1993, subject: Qualification Standards for Enlistment, Appointment, and Induction * exhibit 22 – DA Form 2800, dated 11 September 1968 REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic policy for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. Whenever an undesirable discharge is authorized by regulation, a member may be awarded either an honorable or general discharge if, during the current or a prior enlistment or period of service or voluntary or involuntary extension of either, he has been awarded a personal decoration, or if warranted by the particular circumstances of a specific case. d. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 2. Army Regulation 635-89, in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts. Individuals involved in isolated episodes stemming solely from immaturity, curiosity or intoxication were excluded, but were to be eliminated under other regulations if appropriate. Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated Class I. Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated Class II. Class III applied to individuals who had committed only pre-service homosexual acts. An undesirable discharge was normally considered appropriate for Class II cases. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic policy for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. Whenever an undesirable discharge is authorized by regulation, a member may be awarded either an honorable or general discharge if, during the current or a prior enlistment or period of service or voluntary or involuntary extension of either, he has been awarded a personal decoration, or if warranted by the particular circumstances of a specific case. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The specific instructions stated: a. For item 11c (Reason and Authority), the following reasons for discharge will not be stated in words on the DD Form 214: * unsuitability * inaptitude * unfitness * misconduct * homosexual * resignation in lieu of elimination * resignation for good of the service * any other reason involving mental or moral issues upon which discharge of the individual may be predicated b. For item 15 (Reenlistment Code), the applicable code denotes eligibility or ineligibility for reenlistment: * RE-1 – fully qualified for immediate reenlistment * RE-1A – fully qualified for reenlistment; however, ineligible to enlist in the U.S. Army for 93 days after date of discharge * RE-2 – fully qualified for reenlistment but separated for convenience of government under a separation which does not contemplate immediate reenlistment * RE-2A – fully qualified for reenlistment; however, not eligible to reenlist in grade or in grades authorized for enlistment within 3 months from date of discharge * RE-3 – not eligible for reenlistment unless waiver is granted * RE-3A- not eligible for reenlistment unless waiver is granted, this code is applicable only to enlisted personnel who do not possess scores of 90 or higher in any three or more aptitude areas of the Army Qualification Battery or the Army Classification Battery * RE-3B – not eligible for reenlistment unless waiver is granted by commander concerned, this code is only applicable to enlisted personnel who have time lost during their last period of service * RE-4 – not eligible for reenlistment * RE-4A – not eligible for reenlistment; this code is applicable only to enlisted personnel classified for failing to qualify for reenlistment due to citizenship c. Appendix 1 (Separation Program Number (SPN) and Authority Governing Separations) shows SPN 257 is assigned to individuals separated under the provisions of Army Regulation 635-89 by reason of acceptance of discharge or discharge as a result of board action (Class II homosexual). 5. 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 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. Effective 20 September 2011, Service Discharge Review Boards 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 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. 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 Service Discharge Review Boards, 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 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. 6. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction (ABCMR) in Docket Number AC90-08976 on 3 April 1991. 2. The applicant defers to counsel. 3. Counsel states the applicant's discharge warrants a correction of the narrative, separation code, and RE code following the repeal of DADT on 20 September 2011. (The applicant) respectfully requests this correction after living with the negative consequences and stigma caused by his discharge paperwork for more than 50 years. a. In late September 1967, (the applicant) confided in his company's chaplain that he had engaged in sexual acts with service members of the same sex and sought guidance from the chaplain. The chaplain immediately reported (the applicant’s) statements to his company commander, Captain C , and an investigation commenced. b. The policy under which the applicant was discharged, Army Regulation 635-89, differs in material respects from the policies and procedures governing gay service members today. The repeal of DADT is direct evidence of the difference between today's policies and Army Regulation 635-89, which was far more restrictive than DADT. Whereas Army Regulation 635-89 included a blanket prohibition on gay service members (whether openly gay or not) regardless of whether the service member's sexual orientation affected the individual's actual ability to serve. The repeal of DADT signaled a new policy recognizing the inherent value of service members regardless of sexual orientation. c. Upon and since his discharge, the applicant has felt the consequences and stigma associated not only with a veteran discharged UOTHC but also the stigma associated with veterans and civilians who are gay or who are not gay, but who committed sexual acts with same sex partners. The applicant applied for education benefits under the GI Bill, but was denied. As a result, the applicant never received post-secondary education. The applicant has never received Department of Veterans Affairs (VA) medical benefits. He applied for several jobs, but was turned down because of his DD Form 214. Just recently, (the applicant) applied to refinance his home through a VA home loan service, but was denied. 4. The applicant's Psychiatric Report shows he underwent a psychiatric evaluation on 12 September 1967, which diagnosed him as having a sexual deviation; i.e., chronic, moderate homosexuality characterized by repeated homosexual acts. 5. The applicant's sworn statement to CID on 9· October 1967 shows he admitted he had engaged in homosexual activities prior to his enlistment and during his active duty service at the Ton Son Nhut Air Force Base, Vietnam. 6. On 27 October 1967, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the U.S. Army for homosexual acts under the provisions of Army Regulation 635-89. The company commander advised him of the following rights: * to present his case before a board of officers * to submit statements in his own behalf * to be represented by counsel * to waive the above rights in writing and witnessed by legal counsel 7. The applicant was advised by legal counsel on 26 October 1967. He waived his rights to have his case considered by a board of officers and legal counsel. He did not submit a statement in his own behalf. 8. On 27 October 1967, his immediate commander recommended his discharge under the provisions of Army Regulation 635-89 for his homosexual tendencies and his inability to stop these tendencies. 9. On 6 and 16 November 1967, his intermediate and senior commanders recommended his separation under the provisions of Army Regulation 635-89 and issuance of an Undesirable Discharge Certificate. 10. On 13 December 1967, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-89 with issuance of an Undesirable Discharge Certificate and directed his reduction to the lowest enlisted grade. 11. On 26 December 1967, he was discharged UOTHC under the provisions of Army Regulation 635-89 for Class II homosexuality. He completed 1 year and 14 days of active service. His DD Form 214 shows in: * item 11 c (Reason and Authority) – Army Regulation 635-89 and SPN 257 * item 15 (Reenlistment Code) – RE-4 * item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) 12. On 19 November 1973, the Army Discharge Review Board determined he was properly discharged and denied his request for a discharge upgrade. 13. On 29 November 1979, the Army Discharge Review Board again determined he was properly and equitably discharged and denied his request for a discharge upgrade. 14. On 3 April 1991, the ABCMR returned the applicant's request for a discharge upgrade without action because his application was not submitted within the time required. The ABCMR determined the applicant did not present and his records did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse his failure to file within the time prescribed by law. BOARD DISCUSSION: After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below. 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 that the evidence presented was 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 showing on his DD Form 214 for the period of service ending 26 December 1967: * Character of service as “Honorable” * Reason and authority for discharge as "Secretarial Authority" * Separation code as "JFF" (Secretarial Authority) * Reentry eligibility (RE) as “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. //NOTHING FOLLOWS//