IN THE CASE OF: BOARD DATE: 6 January 2022 DOCKET NUMBER: AR20210012088 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 November 2004 to show he was honorably discharged. Additionally, he requests his length of service be corrected to show what it would have been had he remained in the Army. 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), dated 18 February 2021 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 he was outed by a fellow Soldier who overheard a private conversation. This Soldier told the sergeant, and the applicant was continuously threatened and forced to leave military service. He would have served his time and possibly more had this not occurred. His request is based on the repeal of Don't Ask, Don't Tell (DADT). 3. The applicant enlisted in the Regular Army on 7 October 2004, for a period of six years and 24 weeks. 4. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, the DD Form 214 he was issued shows he was discharged on 5 November 2004, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 15-3b, by reason of homosexual admission. He was credited with completing 29 days of net active service. His service was uncharacterized. 5. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his service characterization and a change to his narrative reason for discharge. The ADRB considered his case on 11 May 2016 and determined his characterization of service was proper and equitable and voted not to change it. However, the Board found the narrative reason for his discharge was inequitable based on current standards. Accordingly, the Board voted to grant partial relief by amending the following items: * item 25 (Separation Authority), to "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code), to "JFF" * item 27 (Reentry Code) to "1" * item 28 (Narrative Reason for Separation), to "Secretarial Authority" 6. The applicant was issued a new DD Form 214, which confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-3, based on secretarial authority. His service remained uncharacterized. 7. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. As a result, his service was appropriately described as "uncharacterized" in accordance with governing regulations. 8. Army Regulation 635-5 (Separations Documents) is the governing authority for a correction of the DD Form 214 involving length of service. It provides that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board found the applicant's service was uncharacterized in accordance with the governing regulation because he was an entry-level Soldier at the time of his discharge. The Board determined his uncharacterized service is not in error or unjust. 3. The Board found no basis for correcting the applicant's record to show he completed his full term of service. His service was terminated in accordance with valid regulatory guidance in effect at the time, and the Board determined his length of service should not be changed. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, 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. 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 635-5, in effect at the time of the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It provided that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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 3-9, in effect at the time of the applicant's separation, provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status (within 180 days of continuous active duty), except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. c. 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. d. The character of service for Soldiers separated under this provision would normally be honorable, but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 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 (Character of Service) 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: * 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012088 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1