ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 14 February 2020 DOCKET NUMBER: AR20190012766 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC), Undesirable Discharge Certificate * a change in his narrative reason APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 5 November 1963 * Undesirable Discharge Certificate, dated 5 November 1963 * Headquarters, 18th Airborne Corps, Fort Bragg, NC, Special Orders Number 270, dated 31 October 1963 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 he went into town for leave and met a young man who suggested they go party. The person seduced and assaulted the applicant. On pay day the man showed up on base and tried to blackmail him and demanded money. The applicant told his officer, that the man was the one that beat him up. He was arrested and sent to prison and the applicant was discharged. Aside from this incident he never caused any problems or got into any trouble. He feels that he was a good Soldier and fulfilled his duties with honor. He was young and made a mistake in trusting this person, but do not believe that mistake justified his discharge and the other than honorable characterization. After separation, he met his wife, raised three children, and has been an upstanding citizen. 3. On 31 October 1962, at the age of 20 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. The separation packet is void of a notification for separation but shows the applicant acknowledged receipt, he was advised of the basis for the actions recommended against him, and he waived consultation with counsel, and elected not to make a statement. On 8 October 1965, the commander requested the applicant be discharged under Army Regulation (AR) 635-89 (Personnel Separations – Homosexuals), with an honorable discharge. The intermediate commander recommended approval, with an honorable discharge. 5. On 21 October 1963, the appropriate separation authority approved the separation and directed that he be issued a undesirable discharge and be reduced to the lowest enlisted grade in accordance with AR 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel), paragraph 31e (approved for discharges from service with an undesirable discharge. 6. On 5 November 1963, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year and 5 days of total active service. His DD Form 214 shows the Reason and Authority: AR 635-89, Separation Program Number 257. 7. The applicant's service record is void of any record of non-judicial punishment or court-martial proceedings. Additionally, his record is void of any evidence of criminal misconduct related to his reason for separation. 8. The applicant states he was seduced and assaulted by a man. This person showed up on his base and demanded money. After the applicant told his officer about the incident, the person was arrested and sent to prison. Aside from this incident he never caused any problems or got into any trouble. He feels that he was a good Soldier and fulfilled his duties with honor. He was young and made a mistake in trusting this person, but do not believe that mistake justified his discharge and the other than honorable characterization. 9. 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. 10. His record shows his discharge was based solely on DADT or similar policy in place prior to enactment of DADT with no other aggravating factors in the record. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the narrative reason for the separation and a change in policy related to homosexual conduct in the Armed Forces, the Board concluded that an injustice was present which warranted a correction to the applicant's characterization of service and the narrative reason. 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: 1. 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 reissuing the applicant a DD Form 214 showing: * characterization of service as Honorable * narrative reason for separation as Secretarial Authority; SPD -JFF; RE 1 2. Prior to closing the case, the Board noted the administrative note below and recommend that change also be completed to more accurately reflect the military service of the applicant. 10/16/2020 X 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 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 5 November 1963, is missing an important entry that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry to item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized): M-1 Rifle Sharpshooter Marksmanship Qualification Badge. 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 Army Board for Correction of Military Records (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 635-89 (Personnel Separations – Homosexuals), in effect at the time, prescribed the criteria and procedures for the separation of homosexual personnel from the Army. a. Homosexual personnel, irrespective of sex, were not permitted to serve in the Army in any capacity. Prompt separation was mandatory. The regulation defined three classes of homosexuality: * class I - involving an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate or consent * class II - cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I * class III - consists of homosexual individuals who have not engaged in homosexual acts while in active military service b. When investigation clearly indicated an individual was a class II homosexual, he/she was be afforded the opportunity to accept a discharge. If not accepted, the commander was to forward the case to the general court-martial convening authority for action. Action could include retention, appropriate action under the Uniform Code of Military Justice, or separation. c. The separation approval authority determined the character of service, but honorable or general discharges were normally only awarded in cases where the Soldier had disclosed his/her homosexual tendencies when entering the service, if the Soldier served over an extended period of time, or if he/she performed in an outstanding or heroic manner. Upon discharge determination, the Soldier was reduced to PV1/E-1. 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//