BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180016877 APPLICANT REQUESTS: The applicant requests an upgrade of his general discharge which was upgraded under the Special Discharge Review Program (SDRP) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he wants his general discharge upgraded to honorable. He wants to receive better benefits. He was told that all he needed to do was apply to the Board for an upgrade. 3. On 9 October 1970, the applicant enlisted in the Regular Army for a period of 3 years. He did not complete training requirements; therefore, was not awarded a military occupational specialty. 4. On 8 January 1971, a Criminal Investigation Division (CID) Report of Investigation shows that an investigation disclosed the applicant engaged in sexual activities between members of the same sex. 5. The applicant was medically cleared for administrative separation and was determined to be mentally responsible both to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and participate in board and other legal proceedings. 6. On 13 January 1971, his commander stated that during the period of 4 December 1970 to 6 December 1970, the applicant displayed sexual perversion to include lewd and lascivious acts of anal copulation with private VJS. There is no question of the fact that this individual did engage in these acts. The commander concluded that the applicant was sexually perverted and recommended that he be processed for separation from the service as unfit under provision of paragraph 6a (2) Army Regulation (AR) 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability). 7. On 14 January 1971, the applicant’s commander notified him that he was initiating separation actions against him under the provisions of paragraph 6, AR 635-212 for unfitness. a. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for unfitness, its effects, and of the rights available to him. He elected not to submit a statement in his own behalf. b. He acknowledged that he understood, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. c. His chain of command recommended approval of the separation action and that he be given an undesirable discharge. d. The separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate. 8. On 21 January 1971, the applicant was discharged accordingly under other than honorable conditions, based on unfitness (homosexual acts). He completed only 3 months and 12 days of net service. The applicant did complete training requirements and was not awarded a personal decoration. 9. In June 1974 the Army Discharge Review Board (ADRB) determined that he was properly discharged and his request for a change in the type and nature of his discharge was denied. 10. In January 1978, his undesirable discharge was upgraded to a general discharge and his narrative reason for separation was change to secretarial authority under the Department of Defense (DOD) SDRP. 11. In June 1978, the ADRB reviewed the applicant’s case under the provisions of Public Law (PL) 95-126 and directed The Office of the Adjutant General to issue a change to his DD Form 214 to affirm his DOD-SDRP discharge upgrade under uniform standards. 12. A DD Form 215 (Correction to DD Form 214), dated 18 July 1978, shows item 27 (Remarks) was corrected to read "DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT RECHARACTERIZATION OF SERVICE IS WARRANTED BY DOD DIRECTIVE." 13. On 29 July 1978, as required by PL 95-126, the ADRB re-reviewed the upgrading of the applicant’s discharge and determined that he did not qualify for upgrading under the new uniform standards for discharge review. His discharge upgrade under the DOD-SDRP was not affirmed. 14. Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedure and guidance in the elimination from the service of enlisted personnel who were found to be unfit or unsuitable for further military service. Paragraph 6a provided that an individual was subject to separation for unfitness based on sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, and indecent acts with or assault on a child. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 15. Public Law 95-126, enacted on 8 October 1977, stated generally that no Veterans Affairs benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the Department of Defense SDRP. It required the establishment of uniform published standards, which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards. 16. 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. a. The guidance authorized Boards to amend the Soldier's narrative reason for discharge to "Secretarial Authority" with SPD code JFF, modify their character of service to honorable, change the (RE) code to reflect immediate eligibility (RE-1) b. 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. 17. His record shows his discharge was based solely on DADT or similar policy in place prior to enactment of DADT with no other aggravating factors in the record. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The applicant was separated solely for homosexual acts. As there were no other factors involved with the discharged, the Board agreed to upgrade the characterization to honorable. 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 21 January 1971 showing in: * item 9e (Character of Service): Honorable * item 9c (Authority and Reason): Secretarial Authority * item 9c (SPD): JFF * item 10 (Reentry Code): RE-1 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 Army Board for Correction of Military Records (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 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedure and guidance in the elimination from the service of enlisted personnel who were found to be unfit or unsuitable for further military service. a. Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit- forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). b. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) set forth the basic authority for the administrative separation of enlisted personnel. It provides that: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. Public Law 95-126, enacted on 8 October 1977, stated generally that no Veterans Affairs benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the Department of Defense Special Discharge Review Program (SDRP). It required the establishment of uniform published standards, which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards. 5. 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. 6. 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, effective 20 September 2011: a. Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "Secretarial Authority" * SPD Code JFF) * characterization of the discharge to honorable * RE code to immediately-eligible: RE-1 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016877 3 ABCMR Record of Proceedings (cont) AR20180016877 1