ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20180013591


APPLICANT REQUESTS:  Her character of service be upgraded and the narrative 
reason for separation be changed to eliminate any reference to homosexual acts.

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) with personal statement
*	her social security card and driver license
*	Trial Defense Service statement, dated 17 August 1990
*	retention board testimony (16 pages)
*	defense counsel post-board memoranda

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
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 she has requested an upgrade due to changes in the Armed 
Forces policies regarding homosexuals.  The witnesses at her retention board lied or 
were coerced to make statements that were false or distorted.  Her company 
commander not only wanted her out of the unit but out of the Army; he wanted to punish 
and hurt her.  After the retention board concluded, one of the witnesses went to her 
lawyer and admitted she had lied. 

3.  The applicant enlisted in the Regular Army on 2 December 1985.

4.  In July 1990, it was reported that other Soldiers had witnessed the applicant 
engaged in homosexual acts.

5.  The applicant was afforded a mental status evaluation on 16 July 1990, wherein she 
denied any history of homosexual behavior.  She was cleared to participate in any 
administrative actions. 
6.  The applicant's commander notified the applicant, on 14 May 1990, he was initiating 
actions to separate her from service under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 15, for engaging in homosexual 
acts between 1 March and 30 April 1990.

7.  The applicant acknowledged receipt of the proposed separation notification on 
15 May 1990.  Subsequent to receiving legal counsel, the applicant invoked her right to 
a personal appearance with counsel before a board of officers.

8.  The applicant was ordered to appear before a board of officers on 6 August 1990, to 
determine if she would be retained or discharged.  The board heard testimony directly 
or indirectly from 10 witnesses between 6 and 8 August 1990.  The transcript of the 
retention board testimony, with 14 exhibits but lacking pages 1-12, is included in the 
applicant's personnel file.  

9.  The board president found the applicant had engaged in homosexual acts on three 
occasions, her conduct was not a departure from her usual and customary behavior and 
was likely to recur, and her presence in the Army was inconsistent with the interest of 
the Army in ensuring proper discipline, good order, and moral.  He recommended her 
separation from service.

10.  The separation authority approved the board president's recommendation and the 
applicant's discharge under the provisions of Army Regulation 635-200,  
paragraph 15?3a, by reason of misconduct – homosexual acts.  He further directed she 
receive a general discharge.

11.  The applicant was discharged on 11 September 1990.  The DD Form 214 she was 
issued confirms she was discharged under the provisions of Army Regulation 635-200, 
paragraph 15-3a, in the rank/paygrade of specialist/E-4.  Her service was characterized 
as under honorable conditions (general).  Her narrative reason for separation was 
shown to be "engaged, attempted to engage in, or solicited another to engage in 
homosexual act(s)."  

12.  The 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, USC, provided directives for the review of separations following 
the repeal of Don't Ask, Don't Tell (DADT) or prior policies.

?
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 
relating to homosexual conduct, the Board concluded that making the following changes 
to the applicant's DD Form 214 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 issuing the applicant a 
new DD Form 214 for the period ending 11 September 1990 showing in:

*	item 24 (Characterization of Service):  Honorable
*	item 25 (Separation Authority):  Army Regulation 635-200, paragraph 5-3
*	item 26 (Separation Code):  JFF
*	item 27 (Reentry Code):  1
*	item 28 (Narrative Reason for Separation):  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 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 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.

	b.  Paragraph 3-7b provides that 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 14-33a, as in effect at the time, prescribed the authority, criteria, and 
procedures for the disposition of military personnel who are homosexuals and military 
personnel who engage in homosexual acts, or are alleged to have engaged in such 
acts.  It stated personnel who voluntarily engage in homosexual acts, irrespective of 
sex, would not be permitted to serve in the Army in any capacity.  Homosexuality is a 
manifestation of a severe personality defect which appreciably limits the ability of such 
individuals to function effectively in a military environment.  Members, who engage in 
homosexual acts, even though they are not homosexuals within the meaning of this 
regulation, are considered to be unfit for military service because their presence impairs 
the morale and discipline of the Army.

3.  The Don't Ask, Don't Tell Repeal Act of 2010 (H.R. 2965, S. 4023) established a 
process for ending the DADT policy (10 U.S.C. 654), thus allowing gay, lesbian, and 
bisexual people to serve openly in the U.S. Armed Forces.  It ended the policy in place 
since 1993 that allowed them to serve only if they kept their sexual orientation secret 
and the military did not learn of their sexual orientation.

4.  The 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, USC), 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.

	a.  The memorandum provides that effective 20 September 2011, Service DRBs 
should normally grant requests, in these cases, to change the:

•	characterization of the discharge to honorable (if appropriate) 
•	separation authority to "Army Regulation 635-200, paragraph 5-3" 
•	narrative reason for discharge to "Secretarial Authority" 
•	separation code to "JFF"
•	reentry (RE) code to an immediately-eligible-to-reenter category

	b.  For the above corrections 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 Department of Defense (DoD) policy 
that broad, retroactive corrections of records from applicants discharged under DADT 
(or prior policies) are not warranted.  Although DADT was 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.

5.  Based in part on the above memorandum, the specific regulations for homosexual 
separations were removal and a change of reason for separation was directed if there 
are no aggravating factors.  If the service member had admitted to homosexual 
tendencies and there is no evidence that there was any homosexual activity or other 
aggravating factors, their DD Form 214 was to be corrected at:

*	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"

6.  It further directed that the DD Form 214 be reissued, in lieu of the DD Form 215 
(Correction of the DD Form 214), to avoid a continued record of the homosexual 
separation.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180013591
	
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