ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180013198 APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to change the following: * Item 24 (Character of Service) from uncharacterized to honorable * Item 28 (Narrative Reason for Separation) from admission of homosexuality APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 * DD Form 215 (Correction to DD Form 214) 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 (ABCMR) 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 the admission of homosexuality is no longer against the Uniform Code of Military Justice (UCMJ). The law changed. She states she would like her character of service changed to honorable and the narrative reason for separation changed from admission of homosexuality. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 23 October 1984. b. The notice of initiation of elimination proceedings dated 10 December 1984 notified her of the intention to discharge her from the US Army under the provisions of chapter 15, Army Regulation 635-200-(Personnel Separations) due to homosexuality. She had the right to present her case before a board of officers, be represented by counsel, submit statements in her own behalf and waive her rights. c. The applicant’s rights dated 11 December 1984 were outlined, she waived her right to: * consideration by a board of officers and personal appearance before a board of officers * make statements on her own behalf and representation by counsel * she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her * a psychiatric examination d. The recommendation of discharge dated 12 December 1984 was for the reason of self-admitted homosexuality, a life style which she intended to continue. e. In the applicant’s sworn statement on 13 December 1984, she stated she was a homosexual and that she intended to continue the lifestyle. She respected the military and its regulations therefore, she could no longer serve because she did not intend to changer her lifestyle. f. The discharge under the provisions of paragraph 15-3, AR 635-200 was approved on 13 December 1984. g. Orders 242-85 dated 14 December 1984, she was reassigned to the U.S. Army separation transfer point for separation processing and discharged from the Regular Army on 18 December 1984. h. DD Form 214 period ending 18 December 1984 shows she was discharged from active duty with her character of service as entry level status, in accordance with chapter 15-3b, Army Regulation 635-200. She completed 1 month and 26 days of net active service this period. Her separation code was JRB and RE code 4: * Item 24 (Character of Service) entry level status * Item 28 (Narrative Reason for Separation) admission of homosexuality i. DD Form 215 dated 18 December 1984 shows item 24 added uncharacterized. j. There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. 4. By regulation (635-200 (Personnel Separations)), 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. 6. 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: * Item 24 (Character of Service) Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized * Item 28 (Narrative Reason for Discharge) the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JRB- homosexual admission)) * the RE code to an immediately-eligible-to-reenter category 7. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. 8. 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, the Board found relief was warranted. The applicant served in the Regular Army from 23 October 1984 to 18 December 1984. During her military service, she admitted homosexuality. Accordingly, her commander initiated separation action against her in accordance with paragraph 15-3 of AR 635-200. Her discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. 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 should now have their reason for discharge and characterizations of service changed. The evidence of record shows the applicant's record is void of any adverse counseling statements or disciplinary actions. In accordance with DoD guidance, her overall record contains no evidence that would present a barrier to correcting her record to show she was separated by reason of Secretarial Authority (paragraph 5-3 of AR 635-200), with an SPD code of "JFF" and an RE code of "1." 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 voiding her DD Form 214 for the period ending 18 December 1984 and issuing her a new DD Form 214 showing: * she was discharged with an honorable characterization of service by reason of Secretarial Authority (Paragraph 5-3, AR 635-200) * she was assigned a separation code of "JFF" and a reentry code of "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 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) states 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. 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. 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: * item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized * item 28 (Narrative Reason for Separation) the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JRB) * 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, DoD 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) AR20180013198 5 1