ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20190003442


APPLICANT REQUESTS:  Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an upgraded character of service and to eliminate any reference to homosexuality from the 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)
* Advanced Individual Training (AIT) Certificate, dated 3 February 1983
* Certificate of Achievement, dated 22 July 1983
* Johnson & Wales College Bachelor of Science, dated 22 August 1983 
* Certificate of Promotion, dated 1 February 1984
* DA Form 4980-18 (Army Achievement Medal (AAM) Certificate), dated 
11 October 1984
* DA Form 4950 (Army Good Conduct Medal (AGCM) Certificate), for the period 11 August 1982 through 10 August 1985
* Navy Honorary Frogman Certificate, dated 20 December 1994

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 she is requesting an upgrade due to changes in the Armed Forces policies regarding homosexuals.  

3.  The applicant enlisted in the Regular Army on 11 August 1982 with an immediate reenlistment on 15 February 1985.

4.  During the applicant's first enlistment period, she was awarded a Certificate of Achievement, an AAM, and the AGCM.

5.  A DA Form 4856 (General Counseling Form), dated 22 May 1988, shows the applicant admitted to her command sergeant major (CSM) that she was a homosexual.  The CSM notified her that he would be recommending she be discharged for homosexuality.

6.  The applicant provided a statement, wherein she admitted that she had an affair with a civilian during her first enlistment but had not had any sexual relationships since.  She highlighted her career but had determined from seeing the effect on other homosexuals that it was in the best interest of both herself and the Army for her to be separated.  She requested her service be characterized as honorable.

7.  The CSM obtained a letter from the applicant's mother, in which she noted that the applicant had admitted her homosexuality to the family approximately 6 months earlier.

8.  The applicant was formally notified on 9 June 1986 of her command's intent to initiate separation proceedings against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of her homosexual admission, with a recommendation that she receive a general discharge.  She acknowledged receipt of the proposed separation memorandum on the same date.

9.  The applicant consulted with legal counsel on 9 June 1986.

	a.  She was advised of the basis for the contemplated discharge, the consequences of receipt of a general discharge, and the procedures and rights that were available to her.  

	b.  Subsequent to receiving legal counsel, the applicant voluntarily waived her right to a personal appearance with counsel before a board of officers.  

	c.  She was advised she could submit any statements she desired in her own behalf.  

10.  The separation authority approved the applicant's discharge on 16 June 1986, under the provisions of Army Regulation 635-200, paragraph 15-3, for homosexual admission.  The approval documentation does not include a reference to her service characterization.

11.  The applicant was discharged on 20 June 1986, under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of her admission of homosexuality/ bisexuality.  Her DD Form 214 shows her service was characterized as under honorable conditions (general).  Her DD Form 214 further shows she was discharged in the rank/grade of specialist four/E-4.

12.  With the exception of the applicant's admission of homosexual tendencies, the record contains no evidence of any adverse or derogatory remarks or misconduct.

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:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for review of separations following the repeal of Don’t Ask, Don’t Tell (DADT) or prior policies.  The Board considered her statement, the circumstances of her separation and found no underlying misconduct associated with her discharge.  The Board determined that policies have changed regarding service for individuals who would have previously been discharged under DADT and, based on that change, a correction to the applicant’s record was required.

2.  After reviewing the application and all supporting documents, 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:

In addition to the correction stated in the Administrative Note(s) below, 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 amending her DD Form 214 for the period ending 20 June 1986 as follows:
* 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):

A review of the applicant's record shows his DD Form 214, for the period ending 20 June 1986 is missing important entries that affect her eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entry to 
item 18 (Remarks): 

* SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE



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.  Paragraph 5-3 provides that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  

   d.  Paragraph 15-3b, as then in effect, provided that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.
   
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. 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.

ABCMR Record of Proceedings (cont)	 AR20190003442
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