IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20190003222 APPLICANT REQUESTS: The applicant requests an upgrade of her general discharge to fully honorable and a change of her reenlistment eligibility (RE) code to a code that will make her eligible for veteran’s benefits. Additionally, she requests an opportunity to personally appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Certificate of Release or Discharge from Active Duty) (x2) * Army Discharge Review Board (ADRB) Case Review and Directive 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 her discharge should be upgraded and her RE code changed. When she was separated under “Don’t Ask Don’t Tell" (DADT), she was not aware of the RE code. [When she learned,] she attempted to change it to join other branches [of the service]. She wrote to her Congressman and received no reply. Now that her sexual orientation is not considered an offense or labeled less than, she believes she deserves the paperwork to match and the benefits she is entitled to receive. 3. On 30 June 2000, the applicant enlisted in the Regular Army for 3 years. She held military occupational specialty 77F (Petroleum Supply Specialist). 4. The available evidence contains seventeen negative counseling statements dated between 29 October 2001 and 26 February 2002 for numerous offenses including disobeying a lawful order (multiple), monthly counseling (multiple), failing to come to formation, failure to report, bad checks, a bar to reenlistment, failure to follow instructions/directions (multiple), safety violation of cold gas operations, failure to report to duty on time (multiple), and driving while her license was suspended/revoked. 5. The applicant's service record shows, on 6 February 2002, she admitted in a written statement that she was homosexual and had the natural propensity to engage in sexual activity with members of the same sex. She requested a discharge. 6. On 6 February 2002, the applicant’s unit commander notified the applicant of initiation of discharge proceedings under the provisions of Chapter 15, AR 635-200, by reason of homosexual admission with an honorable discharge. 7. On 26 February 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived her right to an administrative separation board, and did not submit a statement on her behalf. 8. On 1 March 2002, the intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 9. On 8 March 2002, the applicant again consulted with legal counsel and waived her right to an administrative separation board contingent on receiving a characterization of service not less favorable than honorable, if a statement was submitted at this time it is not in the available record. 10. On 18 March 2002, the applicant withdrew the contingency waiver and did not submit statements on her behalf. 11. The separation authority directed the applicant's discharge with service characterized as general, under honorable conditions. 12. Orders 078-0011, Headquarters 101st Airborne Division, Fort Campbell, KY, dated 19 Mach 2002, shows the effective date of discharge as 25 March 2002. 13. Initially, the applicant was separated under Army Regulation (AR) 635-200, paragraph 15-3b, for homosexual admission, with a general characterization of service. She was assigned an SPD Code of JRB, and an RE code of 4. 14. The applicant provided an ADRB Case Review and Directive, dated 14 September 2013, showing the ADRB, voided her DD Form 214 and issued her a new DD Form 214 for the same period of service containing the following changes. * Separation Authority – AR 635-200, Paragraph 5-3 * Separation Code – JFF * Reenlistment Code – 3 * Narrative Reason for Separation – Secretarial Authority 15. In 1993, the 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 changed the 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. 16. Regarding the applicant’s contention that her discharge should be upgrade to fully honorable, and her RE code of 3, should be changed. a. Although an honorable or general discharge may be authorized in cases where no aggravating factors are present, the characterization of the discharge should reflect the character of the Soldier's overall record of service. In the applicant’s case, the applicant completed 1 year, 8 months, and 26 days of her 3 year enlistment obligation and her record shows she was counseled for numerous misconduct offenses prior to initiation of the current discharge. b. An RE code of “3” applies to Soldiers with a disqualification for reenlistment that is waivable. The Army only assigns RE codes as they are applicable to eligibility for reenlistment. If she believes her RE code is hindering her eligibility for benefits, she should address that matter with the Department of Veterans Affairs. c. In regards to the applicant's request for a personal appearance, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 19. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The Board found no evidence of error or injustice in the RE code recorded in the applicant's record as a result of the ADRB decision. Her record shows she requires a waiver for reenlistment (i.e., because of the characterization of her service), which is properly noted by RE code "3." 3. The Board agreed the evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. 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 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such order. b. Chapter 15, at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was 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 would reflect the character of the Soldier’s service. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active service. The SPD code of "JRB" was the correct code for Soldiers separating under chapter 15 for homosexuality. 4. DADT policy was implemented in 1993 during the Clinton presidency. 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. 5. 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 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 (to "Secretarial Authority" with the SPD code of JFF) * characterization of service to honorable * RE code to an immediately-eligible-to-reenter category 6. 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. 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 Department of Defense (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. 8. AR 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve. Table 3-1 included a list of the RA RE codes. RE codes are numbered 1, 3, and 4. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted and a characterization of service of less than honorable requires a waiver * RE-3B applies to Soldiers who are not considered fully qualified for reentry, because of lost time, but the disqualification is waivable * RE-4 applies to Soldiers ineligible for reentry 9. 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 based on 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) AR20190003222 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003222 7 ABCMR Record of Proceedings (cont) AR20190003222 5