IN THE CASE OF: 

		BOARD DATE:  21 September 2022

		DOCKET NUMBER: AR20210015090


APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of 
Release or Discharge from Active Duty) to show a more favorable reason for 
separation, based on the repeal of Don't Ask, Don't Tell (DADT).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: a 
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, 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, in effect, his sexuality should not be the reason for a less than 
honorable characterization of service.

3.  The applicant enlisted in the Regular Army on 29 September 1988.

4.  On 10 February 1989, he accepted nonjudicial punishment under the provisions of 
Article 15 of the Uniform Code of Military Justice for willfully disobeying a lawful order on 
two occasions.

5.  A DA Form 2496 (Disposition Form), dated 6 February 1989, shows that the 
applicant's commander referred the applicant for a mental health evaluation because 
the applicant self-reported as homosexual. He reported being teased by his fellow 
Soldiers and having a difficult time taking orders. He was psychiatrically cleared for any 
administrative or judicial action deemed appropriated by his command. The medical 
official stated that homosexuality was not a psychiatric disorder; however, the attitude 
and desires presented by the applicant had the potential to cause problems and be a 
disruption to any unit to which he was assigned.



6.  On 11 February 1989:

	a.  The applicant was notified of his commander's intent to initiate separation actions 
against him under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations - Enlisted Personnel), Chapter 15 -1, by reason of homosexuality.

	b.  The applicant acknowledged receipt of the proposed separation notification. He 
consulted with legal counsel and was advised of the basis for the contemplated 
separation action and its effects, the rights available to him, and the effects of a waiver 
of his rights. He waived his right to a separation medical examination.

	c.  The applicant's commander formally recommended the applicant's separation 
from service under the provisions of AR 635-200, Chapter 15, by reason of 
homosexuality. The separation authority approved the recommended separation action 
on 22 February 1989, with an uncharacterized entry level separation.

7.  The applicant was discharged on 28 February 1989. His DD Form 214 shows he 
completed 5 months of net active service and contains the following entries in:

*	item 24 (Character of Service) – Uncharacterized
*	item 25 (Separation Authority) – AR 635-200, Paragraph 5-3a
*	item 26 (Separation Code) – JRB
*	item 27 (Reentry Code) – RE-4
*	item 28 (Narrative Reason for Separation) – Admission of Homosexuality or 
Bisexuality

8.  The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton 
presidency. This policy banned the military from investigating or asking service 
members about their sexual orientation.

9.  The Board should consider all of the applicant's statements and contentions in 
accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was warranted. The Board carefully 
considered the applicant's record of service, documents submitted in support of the 
petition and executed a comprehensive and standard review based on law, policy and 
regulation.  Upon review of the applicant’s petition and available military records the 
Board determined the applicant admitted to his leadership his sexual orientation and his 
response influenced the discharge determination.  With the circumstances discussed in 
this case, the Board agreed it is equitable to correct the applicant's character of service, 
narrative reason, separation code and reentry code.  Therefore, relief was granted.  


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:

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 issuing the applicant a 
new DD Form 214 for the period ending 28 February 1989 showing in:

•    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


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.



REFERENCES:

1.  Title 10, United States Code, 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 Army Board for Correction of 
Military Records 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 (AR) 635-5-1 (Separation Program Designator (SPD) Codes) 
provides the specific authorities (regulatory or directive), reasons for separating Soldiers 
from active duty, and the separation codes to be entered on the DD Form 214. At the 
time, this regulation prescribed the separation code "JRB" was the appropriate code to 
assign to Soldiers separated under the provisions of Chapter 15 of AR 635-200, based 
on homosexuality. Additionally, the SPD/Reentry (RE) Code Cross Reference Table 
established RE code "4" as the proper RE code to assign Soldiers separated under this 
authority and for this reason.

3.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 5–3 (Secretarial plenary authority) provides that:

		(1)  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. Separations under this 
paragraph are effective only if approved in writing by the Secretary of the Army or the 
Secretary’s approved designee as announced in updated memorandums.

		(2)  Secretarial separation authority is normally exercised on a case-by-case 
basis but may be used for a specific class or category of Soldiers. When used in the 
latter circumstance, it is announced by special Headquarter, Department of the Army 
directive that may, if appropriate, delegate blanket separation authority to field 
commanders for the class category of Soldiers concerned.

	b.  At the time, Chapter 15 stated 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.

4.  The DADT policy was implemented in 1993. This policy banned the military from 
investigating service members regarding their sexual orientation. Under the previous 
policy, service members may have been 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.  The DADT Repeal Act of 2010 (Title 10, USC, Section 654) was a landmark U.S. 
federal statute enacted in December 2010 that established a process for ending the 
DADT policy, thus allowing gays, lesbians, and bisexuals 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.

6.  Under Secretary of Defense for 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 DRBs and Service 
BCM/NRs to follow when taking action on applications from former service members 
discharged under DADT or prior policies.

	a.  This memorandum provided that effective 20 September 2011, Service DRBs 
and BCM/NRs should normally grant requests in these cases to change the following:

*	item 24 to "Honorable"
*	item 25 to "Army Regulation 635-200, paragraph 5-3"
*	item 26 to "JFF"
*	item 27 to "1"
*	item 28 to "Secretarial Authority"

	b.  For the above upgrades to be warranted, the memorandum states both of the 
following conditions must have been met:

		(1)  the original discharge was based solely on DADT or a similar policy in place 
prior to enactment of DADT; and

		(2)  there were no aggravating factors in the record, such as misconduct

	c.  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.  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, Department of Defense 
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.

	e.  The DD Form 214 should be reissued in lieu of the DD Form 215 (Correction of 
the DD Form 214), to avoid a continued record of the homosexual separation.

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