ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 September 2019

	DOCKET NUMBER:  AR20190010371


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions characterization of service to honorable or general, under 
honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 (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 given an Article 15 and was forced out of the military for 
being drunk along with seven or eight other Soldiers in a barracks room in Germany; 
they were all naked and he was found lying in one of the beds with the company 
commander’s driver, which made the commander very angry; he is black and the 
commander’s driver was white.  He was one of seven or eight people who were passed 
out in the room no one received the type of punishment he received.  He believes the 
commander was homophobic and racism contributed to the commander’s biasness and 
the harsh punishment that he received. No one was caught doing anything, yet he was 
given an ultimatum to accept a demotion from staff sergeant (SSG)/E-6 to private/E-1 
and an honorable or general discharge or he could be dishonorably discharged. He has 
been given a 100 percent disability rating.

3.  The available record shows he completed honorable Regular Army (RA) service 
from 7 June 1977 to 9 December 1979 and from 10 December 1979 to 13 September 
1982.  

4.  Orders 177-15, Headquarters National Training Center, Fort Irwin, CA, confirms he 
was discharged from the RA, effective 13 September 1982, in the rank/pay grade of 
SGT/E-5, for immediate reenlistment.

5.  His Personnel Qualification Record shows he was promoted to staff sergeant (SSG)/
E-6, on 25 August 1982.  However, his enlistment contract and discharge orders 
confirm on 14 September 1982, he immediately reenlisted for 3 years in pay grade 
E-5.  He held military occupational specialty 76Y (Unit Supply Specialist).  He was 
assigned to 11th Armored Cavalry Regiment, Germany from 3 June 1983 to 8 May 
1984. 

6.  The complete facts and circumstances surrounding his discharge are not available 
for review with this case.  However his record contains:

     a.  Criminal Investigation Division (CID) Report of Investigation, message, date time 
group 011045Z, JUL 83, showing an initial investigation disclosed between 26 and 
27 July 1983, the applicant then a SSG and sergeant (SGT) B became intoxicated in 
SGT B’s barracks room and due to his intoxication, SGT B fell asleep, fully clothed on 
his bed.  At 0535, on 27 July 1983, the unit charge of quarters came to the room to 
awake SGT B and found SGT B, naked in bed, and the applicant partially clothed with 
his genitals exposed, in the same bed.   SGT B denied having removed his own clothing 
and both individuals denied knowingly having sexual contact.  

     b.  DA Forms 3881 (Rights Warning Procedure/Waiver Certificates) signed by both 
the applicant and SGT B, showing both were advised they were suspected of 
Sodomy/Lewd and Lascivious Acts.

     c.  The Final CID Report of Investigation, dated 31 October 1983, disclosed that SGT 
B was sleeping in an intoxicated state on his bunk, the applicant removed SGT’s 
clothing, removed his own clothing and then laid with SGT B in the bunk.

     d.  A Sworn statement, written by the investigating CID Agent, indicates the applicant 
stated he had sexual relations with numerous other males and that he was homosexual.  
The statement was made during a conversation with the applicant.  The admission was 
not admissible in any court martial action.  The interview was stopped and the agent 
completed this sworn statement to advise the unit commander in writing of the 
applicant’s admissions.  The investigation report determined the applicant should be 
titled for Indecent Acts.  

7.  His record also contains:

     a.  Orders 83-15, U.S. Army Regional Personnel Center, dated 19 April 1984, 
showing, effective 5 April 1984, the applicant was reduced from SSG/E-6 to private/E-1.  

     b.  DD Form 214 showing he was discharged on 9 May 1984, under the provisions of 
AR 635-200.  This DD Form 214 also shows in:

*	Remarks, IMMEDIATE REENLISTMENT THS PERIOD:  “791210-840509”
*	(Separation Authority), Paragraph 15-3B, Army Regulation (AR) 635-200
*	(Separation Code), JRB
*	(Reenlistment Code), RE-4
*	(Narrative Reason for Separation), Homosexuality/Bisexuality

8.  AR 635-200, 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. 

9.  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 Don’t Ask Don’t Tell (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

10.  For an 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. 

11.  Regarding the applicant’s contentions that:

      a.  Others were naked in the room is not what the CQ found when he came to the 
room to awake SGT B.  The CQ only found SGT B naked and the applicant partially 
clothed with his genitals exposed, in the same bed.  SGT B denied having removed his 
own clothing and both individuals denied knowingly having sexual contact.  

      b.  The commander was racist and homophobic and his biases contributed to his 
harsh punishment; there is nothing in the available to record corroborate this contention.

      c.  He received an Article 15 and he was given an ultimatum to accept a demotion 
from SSG)/E-6 to private/E-1 and an honorable or general discharge or he could be 
dishonorably discharged cannot be corroborated by the available evidence.  He was 
reduced to private E-1, but the Article 15 is not contained in the available record and 
there is no evidence that he was offered anything other than the under other than 
honorable conditions discharge that he received.

      d.  He did not provide information to confirm that he has received a 100 percent 
disability rating.

12.  Even though all the facts and circumstances surrounding his discharge action are 
not available, a CID Report shows the applicant was titled for assault with intent to 
commit sodomy between 26 and 27 July 1983 when he got into bed with an intoxicated 
person and removed that individuals clothes without consent.  A Sworn statement also 
confirms during a CID interview the applicant admitted he had sexual relations with 
numerous other males and that he was a homosexual.  

13.  He completed more than 6 years, 11 months, and 3 days of net active service prior 
to being discharged due to homosexuality.  A portion of this service was honorable RA 
service completed from 7 June 1977 to 9 December 1979 and from 10 December 1979 
to 13 September 1982.  

14.  The law has since been changed concerning homosexuality and current standards 
may be applied to previously-separated Soldiers as a matter of equity.  When 
appropriate, Soldiers separated for homosexuality should now have their reason for 
discharge and characterizations of service changed.  However, the original discharge 
must have been 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. 

15.  In reaching its determination, the Board can consider the applicant’s petition and 
his 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 policy for consideration of discharge 
upgrade requests and for discharges under Don’t Ask Don’t Tell (DADT) or predecessor 
policies.  The Board considered the applicant’s statement, his record of service, the 
frequency and nature of his misconduct and the reason for his separation.  The Board 
considered the records of investigation, the statements of those involved, the CID report 
and the titled offenses, and the policy related to discharge upgrades following the repeal 
of DADT.  One Board member sufficient evidence to determine that applicant’s 
character of service and reason for separation should be amended based on the repeal 
of DADT.  The Board majority determined, based on a preponderance of the evidence 
in the records, that there was underlying misconduct on the applicant’s part and that the 
character of service and the reason for his separation was not in error or unjust.  The 
Board concurs with the corrections stated in the Administrative Note(s) below.

2.  After reviewing the application and all supporting documents, the Board majority 
found that relief was not warranted.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, with the exception of the corrections stated in the Administrative 
Note(s) that follow, 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.


ADMINISTRATIVE NOTE(S):

A review of the applicant’s record shows his DD Form 214 for the period ending 
9 May 1984 is missing an important entry that may affect his eligibility for post-service 
benefits.  As a result, amend item 18 (Remarks) of his DD Form 214 by adding the 
following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM “7 June 1977 
through 9 December 1979 and from 10 December 1979 through 13 September 1982.




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.  AR 635-200, 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
*	RE-3B applies to Soldiers who are not considered fully qualified for rentry, 
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.




ABCMR Record of Proceedings (cont)	 AR20190010371

7

1