ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180015082 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, the designation of general under honorable conditions has been an impediment to his progress and success in life, both mentally and professionally. His sexuality is now legally acceptable and there is no reason he should continue to be penalized, and suffer more than he has already. 3. The applicant's service records show: a. He enlisted into the Regular Army on 15 August 2002 for a 6-year term. On completion of basic combat training at Fort Jackson, SC, he transferred to Fort Gordon, GA for advanced individual training in military occupational specialty 74B (Information Systems Operator-Analyst) (his service records do not show an arrival date at Fort Gordon). b. On 13 February 2003, a civilian worker from the IET (Initial Entry Training) Club, Fort Gordon, rendered a sworn statement alleging the applicant had made unwanted sexual advances toward him while they were both at the IET Club. The civilian worker also provided a note, allegedly written by the applicant, which essentially reflected the applicant's homosexual feelings toward the civilian worker. c. Also on 13 February 2003, the applicant's Fort Gordon commander counseled him with regard to his alleged actions; the commander withdrew the applicant's IET Club privileges and issued the applicant a "No Contact" memorandum directing the applicant to cease and desist any and all contact with the civilian worker. d. On 12 March 2003, the applicant's Fort Gordon commander advised him in writing of his intent to separate the applicant under the provisions of chapter 15 (Discharge for Homosexual Conduct), paragraph 15-3b (Criteria for Discharge – The Soldier has Made a Statement affirming Homosexuality). The commander's stated reason for this action was the applicant's admission he was a homosexual. e. On 12 March 2003, the applicant acknowledged he was advised of the basis for the contemplated separation action; he affirmed he was told of the rights available to him and the effect of waiving those rights. He waived his right to counsel and chose not to submit a statement in his own behalf. His elections memorandum does not show the signature of a counsel. f. In an undated memorandum, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 24 April 2003, he was discharged accordingly. His DD Form 214 shows he completed 8 months and 10 days of his 6-year term. 4. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating service members based on their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and Readiness) issued guidance stating Boards should normally grant requests for character of service upgrades when the former Soldier's separation was due to DADT or a similar earlier policy. The guidance authorized Boards to amend the Soldier's narrative reason for discharge, modify their character of service to honorable, and change the reentry (RE) code to reflect immediate eligibility for reentry. For the above upgrades to be warranted, the original discharge had to be based solely on DADT (or a similar policy in place prior to enactment of DADT), and no other aggravating factors in the record, such as misconduct. 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 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 24 April 2003 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 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 15 (Discharge for Homosexual Conduct) stated homosexual conduct was grounds for separation, and commanders could consider preservice, prior service, and current service homosexual conduct when determining if a Soldier should be separated. The term "homosexual conduct" included acts and/or statements that demonstrated the propensity or intent to engage in homosexual behavior. Commanders were to discharge Soldiers when it was determined they had made statements affirming their homosexuality, had married or attempted to marry a person of the same sex, and/or had engaged in, attempted to engage in, or solicited another individual to engage in homosexual acts. An under honorable conditions character of service was typically granted, except in cases where the Soldier had engaged in homosexual behavior by force, coercion, with a person under 16, or under other aggravating conditions. 3. The Don't-Ask-Don't-Tell (DADT) policy was implemented in 1993 during the Clinton administration. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be 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. 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, 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. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" SPD Code JFF) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 5. 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. 6. 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. 7. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015082 4 1