ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20190000700 APPLICANT REQUESTS: In effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 September 1989, to show a different 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), with a four page, self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 September 1989 * photograph * marriage license and certificate of marriage * letter from her doctor, dated 11 December 2018 * six third-party character reference letters 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 was deliberately decided without her knowledge and understanding. She denied the narrative separation. She was in a relationship with a male, which happened to be her preference for the opposite sex. The narrative separation was and is untrue and should not have been put on her DD Form 214. It was a rumor, and pure harassment to assassinate her character and ruin her career. She further states in effect, in her self-authored letter: * she is a devoted Christian and it goes against her faith * her mother taught her to stand strong in her faith * when she made the decision to leave home and leave her daughter to pursue her career in the military, it was the hardest thing she had to do in her life * * she had a boyfriend while at her first duty station, so she doesn’t understand where the rumors started * her and her boyfriend laughed it off because they knew she was not like that * she didn’t take the rumors serious until it got back to her commander and an investigation started * she was chaptered out for no reason * the narrative reason for separation has ruining her life, her character, and her good name 3. The applicant enlisted in the Regular Army on 16 February 1988. 4. In review of the applicant's record failed to show any derogatory actions taken against her. 5. The applicant's unit commander notified her on 18 July 1989 that he was initiating actions to separate her from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of homosexuality. 6. The applicant acknowledged receipt of the proposed separation memorandum and requested counsel and elected to submit a statement in her own behalf. The applicant state in effect: * she was writing the statement so that she could stay in the Army * she worked hard to make the Army her career * she was not homosexual and had never participated in homosexual acts * she was not bisexual and had not participated in bisexual acts * through rumor and innuendo she was the subject of false accusations * the persons who wrote the statement of alleged homosexuality either had motive to lie or were incorrect in assuming her sexuality * she requested she be retained in the military and if possible, transferred to another unit so that she could escape the rumors and innuendos 7. The unit commander forwarded the formal recommendation for discharge and recommended she receive an honorable discharge. 8. The separation authority approved the applicant's discharge on 16 August 1989, under the provisions of Army Regulation 635-200, Chapter 15, for homosexuality and directed she receive an honorable discharge. 9. The applicant was discharged on 6 September 1989. The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200, Chapter 15, and her service was characterized as honorable. The DD Form 214 also shows in: 1. Item 25 (Separation Authority), the entry "AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel] PARA [paragraph] 15-3a" Item 26 (Separation Code), the entry "JRA" Item 27 (Reenlistment Code), the entry "4" Item 28 (Narrative Reason for Separation), the entry "Engaged in, attempted to engage in, or solicited to engage in homosexual acts" 10. The applicant provides six third-party character statements that allude to her not being a homosexual nor a bisexual. These individuals refer to the applicant as a God fearing woman, a great person, friend, wife, mother, and grandmother. She does not deserve the statement of homosexuality that appears on her DD Form 214. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the reason for her discharge, found no underlying misconduct and considered the DoD policy pertaining to discharges under the provisions of CH 15, AR 635-200. The Board also considered the applicant’s statement and the character statements she provided. The Board determined that her discharge was based on DADT or a similar policy and because the policy has changed, relief is warranted. 2. After reviewing the application and all supporting documentation, the Board determined that relief was warranted. 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 full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214, for the period of service ending 6 September 1989 showing an Honorable discharge by changing: * 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 No entry will be made on the DD Form 214 to show it has been reissued. X CHAIRPERSON 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 15, 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 provided that personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity. Members who engaged in homosexual acts, even though they were not homosexuals within the meaning of this regulation, were considered to be unfit for military service because their presence was deemed an impairment to 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. 1. 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.