ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20180012493 APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty with the following: * change her discharge from general under honorable conditions to honorable * change her separation authority to secretarial authority * change her separation code to JFF * change the reenlistment (RE) code to RE-1 * change the narrative reason for separation to secretarial authority." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * attorney’s brief of applicant’s request * DD Form 4 (Enlistment/Reenlistment Document- Armed Forces of the United States) * curriculum vitae 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 her discharge is in error and unjust due to the repeal of the law known as "Don't Ask, Don't Tell." 3. Counsel provides a legal brief wherein he states in light of the current policy of the Department of Defense and the United States Army and in the interest of justice, the applicant requests her discharge be upgraded. In light of the appeal of the law commonly known as don’t ask, don’t tell (DADT). He states that the applicant was discharged from the Army pursuant to then standing policy. Since the applicant’s discharge the government has changed its policy regarding homosexuality in the armed forces. Through the repeal of DADT it has acknowledged that a Soldier’s sexual orientation has no bearing on fitness for military service and admission of homosexuality no longer constitutes a valid ground for discharge. : 4. The applicant provided: a. Her DD form 214 showing her service period of 20 May 1982 to 23 December 1982. b. Legal brief of the applicant’s request prepared by her lawyer, available for the Board’s review, see bookmark item labeled attorney’s brief. c. DD Form 4 showing her initial enlistment in the Regular Army for 4 years on 20 May 1982. d. Curriculum vitae - summary of her academic and work history from 1985 to 2017. 5. The applicant’s service records shows: a. The applicant enlisted in the Regular Army on 20 May 1982. b. On 1 August 1982, the applicant was assigned to the US Army Intelligence School, Goodfellow Air Force Base, Texas for her Advance Individual Traning. c. On 19 November 1982 the applicant's immediate commander notified her of the initiation of separation actions against her under the provisions of Army Regulation (AR) 635-200, (Personnel Separations-Enlisted Personnel) Chapter 15, by reason of in-service homosexual behavior. He recommended a general discharge be issued. d. After consulting with counsel on or about 24 November 1982, the applicant acknowledged the proposed separation actions, waived her rights to consideration of her case by a board of officers, to a personal appearance before a board of officers, she elected not to submit a statement on her own behalf, and waived rights for representation by a appointed counsel, military counsel and civilian counsel at her own expense. e. On 3 December 1982, the applicant's underwent a mental evaluation the examiner stated she had the mental capacity to understand and participate in the proceedings for elimination. f. On 16 December 1982, consistent with the chain of command recommendations, the approval authority approved the applicant’s request for discharge under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), chapter 15 for admission of homosexuality. He ordered that she be furnished a general discharge. g. On 23 December 1982, the applicant was discharged. Her DD Form 214 (Certificate of release or Discharge from Active Duty) showed she was discharged under the provisions of chapter 15 of AR 635-200, for admission of homosexuality, with a characterization of service of under honorable conditions. Her separation code was JRB and her reenlistment code was RE-4. 6. She completed 7 months, and 4 days active service during this period. It also shows she was awarded or authorized Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 7. By Regulation (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. 8. 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 9. In reaching its determination, the Board can consider the applicant's petition and her 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 narrative reason for the applicant’s separation and a change in the DoD policy relating to homosexual conduct in the armed forces, the Board concluded that upgrading the characterization and all other requested relief by the applicant 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: * (Item 24) characterization of service as “Honorable” * (Item 25) separation authority as “AR 635-200” * (Item 26) separation code as “JFF” * (Item 27) reentry (RE) code as “1” * (Item 28) narrative reason for separation as “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, (Personnel Separations – Enlisted Personnel) chapter 15 at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. Homosexuality is incompatible with military service. Military members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct, seriously impair the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of members who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security. a. Paragraph 3-7 (Honorable Discharge) an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of a 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 3-9, Uncharacterized Separations (Entry Level Separations) a separation will be described as an entry level separation if processing is initiated while a member is in entry level status, except in the following circumstances. When characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the case. The Secretary of the Army, on a case by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the member is separated by reason of selected changes in service obligation, convenience of the government and Secretarial plenary authority c. Paragraph 15-4 when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, and if there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act. 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 ABCMR Record of Proceedings (cont) AR20180012493 4 1