IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190005543 APPLICANT REQUESTS: The applicant requests to change her separation code and reentry code on her DD Form 214 (Certificate of Release or Discharge from Active Duty). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 because of the change in law [of Don’t Ask, Don’t Tell (DADT)], she would like to change her separation code and reentry code on her DD Form 214. She noticed the codes when applying for a Veterans Administration loan and she google searched the meanings. 3. On 5 November 1991, the applicant enlisted in the Regular Army. 4. On 17 December 1996, an Investigating Officer was appointed to informally investigate allegations and comments made by the applicant, which could have serious impact on the "Good Order & Discipline" of the U.S. Army Health Clinic – Vicenza, Italy. 5. On 21 January 1997, the Investigating Officer (IO) found: a. On at least two occasions the applicant admitted to her husband that she had a homosexual affair. This fact was substantiated during a counseling session with Mr. RL when she again admitted that a homosexual relationship had occurred. Further evidence of the admission was obtained by a recording provided by specialist RG in which the applicant admitted to having a homosexual relationship. b. No direct evidence was obtained during the investigation to prove that the acts claimed were actually carried out. The applicant’s admission, its corroboration and the supporting tape were enough to conclude that the applicant engaged in a homosexual relationship while her husband was deployed. c. During the course of the investigation an alleged second homosexual relationship took place between the applicant and another Soldier. The investigation of this accusation was beyond the scope of the IO’s letter of appointment. 6. On 7 February 1997, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for incidents of serious misconduct. The specific reason for the discharge was the applicant's admissions of homosexual conduct. 7. On 18 February 1997, a mental health evaluation showed the applicant had no significant psychiatric disturbance. She was returned to full duty without restriction, and was cleared for any administrative action deemed appropriate by her command. A medical examination also cleared her for administrative separation. 8. The applicant acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel. She was advised of the bases for the contemplated separation action for homosexual conduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her. She further elected to have her case considered by an administrative separation board; however, she elected not to submit a statement in her own behalf. She also acknowledged that she understood: * she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her * as a result of the issuance of an under other than honorable conditions discharge she could be ineligible for many or all benefits as a veteran under both State and Federal laws 9. On 17 March 1997, the applicant voluntarily submitted a request to waive consideration of her case by an administrative separation board contingent upon her receiving a characterization of service no less favorable than honorable. 10. Subsequent to this acknowledgement, the applicant’s commander initiated separation action against her in accordance with chapter 15, AR 635-200 by reason of homosexual conduct. 11. On 18 March 1997, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 with an “Honorable” character of service. 12. On 29 March 1997, she was discharged accordingly. The DD Form 214 she was issued shows she was discharged under the provisions of chapter 15 of AR 635-200 and her service was characterized as "Honorable". She completed 5 years, 4 months, and 25 days of net active service this period. Her DD Form 214 shows in: * Item 25 (Separation Authority), AR 635-200, paragraph 15-3b * Item 26 (Separation Code), JRB * Item 27 (Reentry Code), RE-4 * Item 28 (Narrative Reason for Separation), Homosexual Admission 13. 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. 14. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. The applicant was serving honorably until she was separated for her reported homosexuality. With the circumstances discussed in this case, the Board agreed it is equitable and just to amend the applicant's discharge document. 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: After a full review of the application and record 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 ending 97-03-29 as follows: * item 25 (Separation Authority): AR 635-200, para 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): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, prescribed the criteria and procedures for the separation of homosexual personnel from the Army. 3. 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. 4. 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 that, a. Effective 20 September 2011, 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 * Reentry Code (RE) code to an immediately-eligible-to-reenter category (RE-1) b. For the above upgrades to be warranted, 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. 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. c. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005543 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005543 5 ABCMR Record of Proceedings (cont) AR20190005543 4