ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20190000411 APPLICANT REQUESTS: His under honorable conditions (general) 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) * Special Orders Number 193, issued by Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized) on 12 July 1974 * DD Form 214 (Report of Separation from Active Duty), for the period ending 12 July 1974 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 he was discharged for being homosexual. Now that being a homosexual is no longer a dischargeable offense, he would like to have his discharge upgraded to a full honorable discharge. 3. The applicant enlisted in the Regular Army on 12 November 1970. 4. The applicant received nonjudicial punishment on 8 February 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 4 February through on or about 6 February 1971. 5. The applicant was discharged on 18 June 1973, for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 19 June 1973. 6. The applicant was afforded a psychiatric evaluation on 1 April 1974. It was the opinion of the attending physician that he was sincere in his statements about his sexual orientation. He was cleared for administrative action deemed appropriate by his command. 7. The applicant's unit commander notified the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unsuitability. 8. The applicant acknowledged on 1 May 1974 that he had been advised of the basis for the contemplated separation and had been advised of his rights. He waived consideration of his case by, and personal appearance before, a board of officers. He further waived representation by counsel but acknowledged his understanding that he could receive an undesirable discharge that would deprive him of some or all of his state and Federal benefits. He stated he no longer desired to serve in the military. 9. A special court-martial, adjudged on 2 May 1974, found the applicant guilty of being AWOL from on or about 2 January 1974 through on or about 25 February 1974 (55 days) and of using disrespectful language toward a noncommissioned officer. 10. The applicant's commander recommended, on 10 May 1974, the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsuitability due to homosexual tendencies. 11. The separation authority approved the applicant's discharge on 10 May 1974, under the provisions of Army Regulation 635-200, Chapter 13 for unsuitability [homosexual tendencies]. 12. The applicant was discharged on 12 July 1974. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, and his service was characterized as under honorable conditions (general). The DD Form 214 also shows: * separation in the rank/paygrade, private one/E?1 * 10 months and 11 days of net service this period * 2 years, 7 months, and 8 days prior active service * 74 days of lost time due to AWOL and 56 days in excess leave 13. 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 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 following 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 12 July 1974 showing in: * item 9e (Character of Service): Honorable * item 9c (Authority and Reason): Army Regulation 635-200, paragraph 5-3, Secretarial Authority, SPD Code 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 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. Chapter 13, 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. Section 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) AR20190000411 2 1