ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180013609 APPLICANT REQUESTS: The applicant requests her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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 self-authored statement dated 9 September 2018 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending period 23 August 1967 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 suffered an injustice to her military career and is requesting this be corrected. During her service as a dental assistant at Fort Sam Houston, TX, she served as a witness for another female Soldier who wanted to be released from the Army; in the course of that action she stated she was gay. This was a mistake on her part because she is not gay. She only made the statement because she believed that she was helping the other Soldier. She did not expect to receive a UOTHC discharge. 3. The applicant enlisted in the Regular Army on 5 December 1966. 4. The applicant's record contains a DA Form 19-24 (Sworn Statement) that shows she made statements to a criminal investigator on 20 July 1967, concerning her homosexual encounters. 5. The applicant's commander notified her on 24 July 1967 that he was initiating separation actions against her under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuals), for Class II homosexual acts. 6. The applicant acknowledged the commander's intent on 24 July 1967. She acknowledged that she had been advised of the commander's intent to discharge her for homosexuality and was counseled as to the basis for this action. She made the following elections: * she waived representation by counsel * she waived her right to a board of officers * she waived her right to submit statements in her own behalf * she acknowledged her understanding that she could encounter substantial prejudice in civilian life in the event she were issued an under honorable conditions (general) discharge 7. The applicant's commander formally recommended her separation from the Army under the provisions of Army Regulation 635-89, by reason of Class II homosexual acts, and recommended she receive an undesirable discharge. Subsequent level commanders also recommended approval. 8. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 17 August 1967, directed she be reduced to the rank/grade of private/E-2, and ordered that she be furnished an Undesirable Discharge Certificate. 9. The applicant was discharged on 23 August 1967. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-89. Her DD Form 214 confirms her service was characterized as UOTHC. 10. The "Don't Ask, Don't Tell" (DADT) policy was implemented in 1993. This policy banned the military from investigating service members regarding their sexual orientation. Under the previous policy, service members may have been 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. 11. The DADT Repeal Act of 2010 was a landmark U.S. federal statute enacted in December 2010 that established a process for ending the DADT policy, thus allowing gays, lesbians, and bisexuals 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. 12. The Under Secretary of Defense for 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. 13. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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 questioned about his sexual orientation and his response influenced the discharge determination. With the circumstances discussed in this case, the Board agreed it is equitable 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): N/A REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 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 private/E-1. 3. The DADT policy was implemented in 1993. This policy banned the military from investigating service members regarding their sexual orientation. Under the previous policy, service members may have been 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. The DADT Repeal Act of 2010 (Title 10, U.S. Code, Section 654) was a landmark U.S. federal statute enacted in December 2010 that established a process for ending the DADT policy, thus allowing gays, lesbians, and bisexuals 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. 5. Under Secretary of Defense for 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 DRBs and Service BCM/NRs to follow when taking action on applications from former service members discharged under DADT or prior policies. a. This memorandum provides that effective 20 September 2011, Service DRBs and BCM/NRs should normally grant requests in these cases to change the: * character of service to honorable, if warranted * separation authority to "Army Regulation 635-200, paragraph 5-3" * separation program designator code to "JFF" * RE code to an immediately-eligible-to-reenter category * narrative reason for discharge to "Secretarial Authority" 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, and 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, Department of Defense (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. 6. 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" 7. 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. 6. The Secretary of Defense provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including post- traumatic stress disorder (PTSD), traumatic brain injury (TBI), sexual assault, or sexual harassment. a. Guidance documents are not limited to under other than honorable conditions discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. ABCMR Record of Proceedings (cont) AR20180013609 6 1