BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180013126 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable. 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 his discharge should be upgraded in the interest of justice. “Don’t Ask – Don’t’ Tell” was the official United States policy on military service by the Clinton Administration which ended in 20 September 2011. 3. On XX May XXXX, the applicant enlisted in the Regular Army. 4. On 8 November XXXX, a Criminal Investigation Division (CID) report established probable cause to believe the applicant and another male Soldier, after drinking alcoholic beverages, engaged in consensual homosexual activities. 5. On XX May XXXX, the applicant was notified by his commander that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) Chapter 15, for homosexuality. He acknowledged he had been advised of the commander's intent to discharge him for misconduct and was counseled as to the basis for this action. He waived his right to a board of officers; he understood he could receive an under other than honorable conditions discharge and affirmed he knew its implications. 6. On X July XXXX, the separation authority directed the applicant be discharged from the military service under the provisions of chapter 15, AR 635-200, for homosexuality and be issued a general discharge. He was discharged accordingly on XX July XXXX. 7. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating service members based on their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and Readiness) issued guidance stating Boards should normally grant requests for character of service upgrades when the former Soldier's separation was due to DADT or a similar earlier policy. The guidance authorized Boards to amend the Soldier's narrative reason for discharge, modify their character of service to honorable, and change the reentry (RE) code to reflect immediate eligibility for reentry. For the above upgrades to be warranted, the original discharge had to be based solely on DADT (or a similar policy in place prior to enactment of DADT), and no other aggravating factors in the record, such as misconduct. 8. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating service members based on their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and Readiness) issued guidance stating Boards should normally grant requests for character of service upgrades when the former Soldier's separation was due to DADT or a similar earlier policy. a. The guidance authorized Boards to amend the Soldier's narrative reason for discharge to "Secretarial Authority" with SPD code JFF, modify their character of service to honorable, change the (RE) code to reflect immediate eligibility (RE-1) b. For the above upgrades to be warranted, the original discharge had to be based solely on DADT (or a similar policy in place prior to enactment of DADT), and no other aggravating factors in the record, such as misconduct. 9. His record shows his discharge was based solely on DADT or similar policy in place prior to enactment of DADT with no other aggravating factors in the record. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. The applicant was serving honorably until he was separated after a fellow service member reported consensual homosexual conduct with the applicant. With the circumstances discussed in this case, the Board agreed it is equitable and just to upgrade the applicant's discharge characterization. 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 the following amendments: * item 24 (Character of Service) to "Honorable" * item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code) to "JFF" * item 27 (Reentry (RE) Code) to "1" * item 28 (Narrative Reason for Separation) to "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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-89, in effect at the time, prescribed the criteria and procedures for the separation of homosexual personnel from the Army. a. Homosexual personnel, irrespective of sex, were not permitted to serve in the Army in any capacity. Prompt separation was mandatory. The regulation defined three classes of homosexuality: * class I - involving an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate or consent * class II - cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I * class III - consists of homosexual individuals who have not engaged in homosexual acts while in active military service b. When investigation clearly indicated an individual was a class II homosexual, he/she was be afforded the opportunity to accept a discharge. If not accepted, the commander was to forward the case to the general court-martial convening authority for action. Action could include retention, appropriate action under the Uniform Code of Military Justice, or separation. c. The separation approval authority determined the character of service, but honorable or general discharges were normally only awarded in cases where the Soldier had disclosed his/her homosexual tendencies when entering the service, if the Soldier served over an extended period of time, or if he/she performed in an outstanding or heroic manner. Upon discharge determination, the Soldier was reduced to PV1/E-1. 3. The "Don't Ask - Don't Tell" (DADT) policy was implemented in 1993 during the Clinton administration. 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. 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, 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" SPD Code JFF) * characterization of the discharge to honorable * 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, and 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013126 3 ABCMR Record of Proceedings (cont) AR20180013126 1