IN THE CASE OF:  

BOARD DATE:  8 June 2022

DOCKET NUMBER:  AR20210012837


APPLICANT REQUESTS:  The applicant requests to upgrade his discharge general 
discharge to fully honorable.  


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Forms 149 (Application for Correction of Military Record)
*	Order to Report for Induction
*	Relieved from Active Duty Training Orders 
*	General Discharge Certificate
*	Promotion Documents 
*	Finance Specialist Course Diploma 
*	General Clerk Course Certificate of Training 

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:

	a.  Back in 1972 when he was drafted he chose to meet his obligations and joined 
the Army Reserves. He is a gay man and back then, it could have gotten him put out of 
the Army, but he fulfilled his duty to the U.S. Army and served for 4 years honorably. 
During Reserve meetings, heterosexual porn would be shown, words that were very 
derogatory toward women and the “LGBTQ” population would be used all the time. 
Conditions for someone who was LGBTQ were horrendous. He continued to serve 
honorably. 

	b.  In 1976 it became known that he happened to be gay and he did express some 
of his concerns about the atmosphere there. He was sent to the base psychiatrist who 
determined he was a mentally healthy gay man with valid issues, but the end result was 
a general discharge under honorable conditions.  As a 70-year old now and not in the 
best health, he needs that injustice rectified with an upgrade to honorable discharge.  
He was even promoted to specialist four (SP4). He thanks the Board for doing the right 
thing now for him.

	c.  Today it is recognized that merely being born gay should not imply a person is of 
less quality nor cannot serve his/her country with honor. It should never have been a 
reason to discharge an individual. He had spoken to superiors about his discomfort in 
having to sit through heterosexual porn movies which they would often show and the 
language which often was homophobic.     
    
3.  On 8 September 1972, the applicant enlisted in the U.S. Army Reserve (USAR) for a 
period of 6 years.      

4.  A DD Form 214 from the applicant’s record shows:

*	10 November 1972, he entered active duty for training 
*	he was awarded military occupational specialty 73C20 (Payroll Clerk)
*	27 April 1973, he was honorably released from active duty and transferred to 
his USAR unit
*	he completed 5 months and 18 days of net service this period

5.  His Enlisted Qualification Record shows he attained the rank of SP4 on 6 April 1975.  

6.  The applicant was seen for a psychiatric consultation in March and April 1975. At 
that time, he revealed that he was homosexual.  

7.  On 2 November 1975, a medical examination shows the applicant was not qualified 
for retention in the USAR. He was recommended to see a psychiatrist in reference to 
homosexuality.  

8.  On 7 February 1976, medical documents show a military psychiatrist indicated the 
applicant’s behavior specifically fit, Chapter 6, Unsuitability (homosexual act, class II 
homosexual) of Army Regulation (AR) 135-178 (Separation of Enlisted Personnel).    

9.  On 26 February 1976, the Assistant Adjutant General recommended that discharge 
procedures under the provisions of paragraph 6-9, AR 135-178, should be initiated 
immediately.  On 2 March 1976, the Adjutant forwarded the recommendation for 
immediate compliance. The recommendation was returned for not being in compliance 
with the proper procedures for administrative discharges, and eventually resubmitted. 

10.  On 27 April 1976, the applicant acknowledged he had been advised of the basis for 
the contemplated action to accomplish his discharge for homosexuality, in accordance 
with Chapter 6, AR 135-178. Prior to completing this request, he had been afforded the 
opportunity to consult with appointed counsel, or military counsel of his choice if 
reasonably available, or civilian counsel at his own expense. He declined the 
opportunity. 

	a.  He waived consideration of his case by a board of officers and accepted 
discharge under honorable conditions. He elected not to submit statements in his own 
behalf and waived representation by appointed military counsel or civilian counsel.  

	b.  His commander formally recommended him for discharge from the USAR under 
the provisions of Chapter 6, AR 135-178 for homosexuality.  Information, Physical and 
Psychiatric attached indicated the applicant should not have been retained in the USAR. 

	c.  The chain of command recommended approval of the separation action.  

11.  On 2 July 1976, Headquarters, First United States Army, Fort Meade, MD, issued 
Orders 2-1 discharging the applicant from the USAR with a General Discharge 
Certificate, effective 2 July 1976.

12.  AR 135-178, Chapter 6 (Unsuitability) provided that an enlisted member was 
subject to discharge under this chapter for homosexuality (homosexual tendencies, 
desires, or interest but without overt homosexual acts).

13.  The Don’t Ask Don’t Tell (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.  

14.  The DADT Repeal Act of 2010 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.

15.  The 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, 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.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, 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 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 2 July 1976.showing in:

•	item 24 (Characterization of Service):  Honorable
•	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


		 
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):  N/A


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.  AR 135-178, Chapter 6 (Unsuitability) provided that an enlisted member was subject 
to discharge under this chapter for homosexuality (homosexual tendencies, desires, or 
interest but without overt homosexual acts).
3.  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.

4.  The DADT Repeal Act of 2010 (Title 10, U.S. Code, 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.

5.  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, U.S. Code, 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. This memorandum provided that 
effective 20 September 2011, Service DRBs and BCM/NRs should normally grant 
requests in these cases.   

	a.  For the requested changes/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

	b.  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.  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, 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.

	d.  The Orders and Discharge Certificate should be reissued.  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210012837


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS


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