ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
BOARD DATE:  30 April 2019 
DOCKET NUMBER:  AR20180013615 
APPLICANT REQUESTS:  His undesirable discharge be upgraded to an under 
honorable conditions (general) or honorable discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
•	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
•	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
•	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 26 March 1973
•	An article from "The Guardian"
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 the Army policy [regarding homosexuals] has changed since 
he was in the military; Congress lifted the ban in 1993.
3.	The applicant enlisted in the Regular Army on 24 May 1971.
4.	The applicant accepted nonjudicial punishment (NLP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates:
•	on 8 August 1972, for being absent without leave (AWOL) from on or about
28 July 1972 through on or about 1 August 1972
•	on 20 March 1973, for failure to go at the time prescribed to his appointed place 
of duty, on or about 9 March 1973
•	on 20 March 1973, for being AWOL from on or about 12 March through on or 
about 17 March 1973
5.	The applicant was observed, on 25 January 1973, engaging in a homosexual act by 
a staff sergeant and his driver.  This action was reported to the U.S. Army Criminal 
Investigative Command (CID), who conducted an investigation with a finding that 
supported the violation of regulations in effect at that time.
6.	The applicant was afforded a psychiatric evaluation on 7 February 1973 that 
rendered a diagnosis of sexual deviation ? homosexuality.
7.	The applicant's commander notified the applicant on 10 February 1973 that he was 
initiating actions to separate him from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of 
unfitness.
8.	The applicant's commander formally recommended the applicant's separation 
underthe provisions of Army Regulation 635-200, paragraph 13-5, by reason of 
unfitness.
9.	The applicant consulted with counsel and was advised of the basis for the 
contemplated separation action under the provisions of Army Regulation 635-200, 
by reason of unfitness.  He submitted, on 12 February 1973, a waiver of his right to 
further counsel, to personal appearance before and consideration of his case by a 
board of officers, and to submit a personal statement in his behalf.
10.	The separation authority approved the separation recommendation on 16 March 
1973, under the provisions of Army Regulation 635-200, paragraph 13-4, by reason 
of unfitness, and directed the applicant be reduced to the lowest enlisted grade and 
receive an Undesirable Discharge Certificate.
11.	The applicant was discharged on 26 March 1973.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200,
Chapter 13.  His DD Form 214 confirms he was separated in the lowest enlisted grade, 
he was issued an Undesirable Discharge Certificate, and his service was characterized 
as under other than honorable conditions.
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 review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The record shows he had multiple acts of misconduct in which he also was 
caught engaging in a sex act with a trainee.  His command contemplated court-martial 
charges; however, the command authorized the undesirable discharge as an easy 
expeditious way to get him out of the service.  The Board considered the applicant's 
actions as constituting underlying misconduct as it pertains to the DoD guidance after 
the repeal of DADT.  The Board applied Department of Defense guidance for 
consideration consideration of discharge upgrade requests to the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.  The applicant did 
not provide character witness statements or evidence of post-service achievements for 
the Board to consider in support of a clemency determination.  Based upon a 
preponderance of evidence, the Board determined that the applicant's discharge 
characterization was warranted as a result of the misconduct and was not in error or 
unjust. 
BOARD VOTE: 
Mbr 1 	Mbr 2 	Mbr 3 
: 	: 	: 	GRANT FULL RELIEF 
: 	: 	: 	GRANT PARTIAL RELIEF 
: 	: 	: 	GRANT FORMAL HEARING 
:X 	:X 	:X	DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned. 
X James Sampson Jr.
CHAIRPERSON
Signed by: SAMPSON.JAMES.LOUIS.JR.1048172985
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 13-9b, 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) 	 AR20180013615 
ABCMR Record of Proceedings (cont) 	 AR20180013615 
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