ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180014116


APPLICANT REQUESTS:  In effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

   a.  Amend her narrative reason for separation to show she was separated for the good of the service or for the convenience of the government.

	b.  Amend her separation code to a code commensurate with the requested narrative reason for separation.

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), dated 5 October 2018
* DD Form 214, for the period ending 1 November 1995

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 her narrative reason for separation and her separation code are discriminatory and unconstitutional.

3.  The applicant enlisted in the Regular Army on 31 May 1994.  

4.  The applicant's record contains a U.S. Army Criminal Investigation Command (CID) Report of Investigation, dated 4 August 1995, which notes that an investigation revealed the applicant and another Soldier committed homosexual acts on each other on several occasions at the off-post residence where the other Soldier was residing.  Further investigation revealed that between 17 June and 11 July 1995, the applicant and the other Soldier continued their relationship, performing homosexual acts on each other on several occasions in the assigned barracks room of the other Solder.

5.  The applicant was counseled on 15 August 1995.  The DA Form 4856 (General Counseling Form) shows she was informed that separation proceedings were being initiated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15.  She was informed of the effects of a less than fully honorable discharge and separation prior to the expiration of her term of service.

6.  The applicant's immediate commander notified the applicant on or about 14 September 1995 that she was initiating separation actions against her under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexual acts.

7.  After consulting with counsel on 15 September 1995, the applicant acknowledged the proposed separation actions, waived her rights, and elected not to submit a statement in her own behalf.

8.  The applicant's immediate commander formally recommended her separation under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexual acts.  The separation authority approved the recommended discharge on 6 October 1995 and directed that she receive an honorable discharge.

9.  The separation authority approved the recommendation on 6 October 1995 and directed the issuance of a DD Form 256A (Honorable Discharge Certificate).  

10.  The applicant was honorably discharged on 1 November 1995, under the provisions of Army Regulation 635-200, paragraph 15-3a, by reason of homosexual acts.  Her DD Form 214 further shows her separation code as "JRA" and her reentry (RE) code as "RE-3."

11.  The applicant's Official Military Personnel File is void of any Records of Nonjudicial Punishment or Court-Martial Convictions.

12.  The Army Discharge Review Board denied the applicant's request for a change of her narrative reason and separation code on 10 July 2002.

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 her sexual orientation and her response influenced the discharge determination.  With the circumstances discussed in this case, the Board agreed it is equitable to upgrade the applicant's discharge.



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 ending “19951101” 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 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 635-89 (Personnel Separations – Homosexuals), in effect at the time, governed the separation of homosexuals.  It provided that personnel would be discharged under other than honorable conditions if the case fell within the scope of Class II.

	a.  A homosexual act was defined as bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act.

	b.  Class I consisted of those cases which involved invasion of the rights of another person, as when the homosexual act was accomplished by assault or coercion, or where the person involved did not willingly cooperate in or consent to the homosexual act, or, if the act was cooperated in or consented to, where cooperation or consent was obtained by fraud.

	c.  Class II consisted of those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.

	d.  Class III consisted of members who had not engaged in a homosexual act during military service, but had a verified record of pre-service homosexual acts.  It also included all other cases within the purview of this regulation which did not fall within Class I or Class II.

3.  Army Regulation 635-200, currently in effect, governs the separation of enlisted personnel.

	a.  Paragraph 5–3 (Secretarial plenary authority) states:

		(1)  Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.

		(2)  Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers.  When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned.

   b.  Chapter 15 prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is 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 will reflect the character of the Soldier's service.
   
4.  The Don't Ask, Don't Tell (DADT) 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.

5.  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.

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.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20180014116


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