IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210014073 APPLICANT REQUESTS: upgrade of the former service member's (FSM) undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Application for Review of Discharge or Separation * Letter from the American Legion * Letter from the National Personnel Records Center (NPRC) * DD Form 214 (Armed Forces Release or Discharge from Active Duty) * Certification of Military Service * Letter from Employee * Promotion Order * Discharge Order * Certificate of Death * Letter from the Army Review Board Agency (ARBA) * Self-Authored Letter 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 FSM's complete military records are not available to the ABCMR for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the FSM's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the ABCMR to conduct a fair and impartial review of this case. 3. The applicant is requesting an upgrade of her brother's, the FSM, discharge to honorable. The applicant refers to a prior application submitted by the FSM, which had not been acted upon, for the Board's consideration. 4. The FSM completed an Application for Review of Discharge or Separation, dated 7 January 1980, which states in effect, he had a top-secret clearance and his work record in the service was up to standards. While on active duty, he didn't do anything wrong but signed a paper he shouldn't have. He was called in the middle of the night and asked questions concerning homosexuals. All he wanted to do was to get out of there. He shouldn't have been put through that type of investigation. He wasn't accused of anything specific nor did he cause any wrongdoings. He felt it was unjust that they gave him an undesirable discharge and he had been bothered by his service. He had been working in restaurant supply and his performance was well above the standards. 5. The applicant provides the following documents for the Board's consideration: a. A letter from the American Legion, dated 16 January 1980, which states they were submitted the FSM's application on his behalf. b. A letter from the NPRC, dated 5 August 2013, which indicates the FSM's records were located in the area that suffered the most damage in the fire. They were able to provide a copy of his separation document but the photocopy ws the best they could obtain. c. A Certification of Military Service, dated 2 August 2013, which shows the applicant received an undesirable discharge for his service from 2 October 1950 through 16 May 1953. d. A letter from the FSM's employee, dated 8 January 1980, which states the FSM worked with the company beginning the fall of 1947 and never missed a day of work except for the three years of service in the US Army. e. Orders published on 15 February 1952 promoting the FSM to the rank of corporal. f. The FSM's discharge orders, which show he was also reduced to the rank of Private/E-1. g. The FSM's Certificate of Death and documents showing the applicant was his personal representative. h. A letter from ARBA, dated 29 July 2021 to a US Representative stating there was not a record of an application from the applicant for the FSM. i. A letter from the applicant, dated 9 August 2021, which states, in effect: (1) She sent a completed application, including all requested forms and copies of evidence to ARBA on 9 March 2021. Her request was that the FSM's undesirable discharge be changed to honorable. (2) She asked ARBA to not she sent the application via certified mail and it was received and signed for on 15 March 2021. (3) When she hadn't gotten a reply by July she assumed her application was lost. She sought assistance of a US Representative who immediately contacted ARBA. She was resubmitting the entire original application. j. A letter from the applicant, dated 9 March 2021, which states, in effect: (1) When her brother, the FSM, died in 2013, she found among his personal papers a copy of an application for review of discharge or separation. (2) It appeared in January 1980, he contacted a representative in the American Legion to assist him in attempting to get his undesirable discharge changed to honorable. It appeared his request in 1980 was never completed. The FSM seldom spoke of his Army experience, so her account would be as close as she could remember. (3) Upon discovery of the FSM's incredibly high IQ, he was sent to the Defense Language Institute to learn Farsi, then called Persian. He soon became fluent and earned a top secret clearance despite only being a private. He was then sent to Washington DC where he spent the rest of his military career. (4) The FSM was very proud of his time spent in the Army. He was very patriotic. He was also very proud of his top-secret clearance and took it very seriously. To his dying day, he never revealed what his job actually was in Washington. The applicant had reason to believe the FSM served as a Farsi translator for interrupted messages. Whatever his duties, it explained his top-secret clearance at such a young age. (5) Because of the "Blue Discharge" law in effect, at that time, he was demoted and given an undesirable discharge. (6) At the time of his death in 2013, the applicant sent for what she though would make things clearer for her because at the time, she had no information other than she was not able to have him buried in the Veteran Cemetery. Unfortunately, there had been a fire at the NPRC in 1973 and she only received a portion of the Report of Separation, which explained nothing. (7) The reason she was making the request so late was she just recently discovered another file of the FSM's with more materials. She asked the Board to consider the FSM's testimony from 1980. He was never charged with anything. He was demoted, considered guilty (probably by association, and then found guilty. 6. The FSM's enlistment documents are available for the Board's review; however, they are unreadable. 7. On 6 August 1951, Company orders were published promoting the FSM to private first class. 8. On 1 April 1953, a charge of sodomy was preferred against the FSM. 9. On 1 April 1953, the FSM completed a statement, stating he accepted an undesirable discharge for the good of the service and to escape trial by general court-martial. He understood his separation from the Army effected by an undesirable discharge would be under conditions other than honorable, that he may be deprived of many rights as a veteran under both Federal and State legislation, and that he may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the armed forces or the character of discharged received therefrom may have a bearing. 10. On 15 April 1953, the FSM underwent a Report of Medical Examination, which shows he was qualified for general service. 11. On 23 April 1953, a memorandum subject: Separation of Homosexual requested the authority to discharge the FSM for homosexual conduct. The separation was forwarded for evaluation and determination. His chain of command recommended approval. 12. On 11 May 1953, the appropriate approval authority approved the requested separation and directed the FSM receive an undesirable discharge certificate. 13. On 16 May 1953, the FSM was discharged accordingly. He had served 2 years, 7 months, and 15 days of active service. 14. The applicant is requesting an upgrade of the FSM's discharge referring to a previous application submitted by the FSM. a. Army Regulation 615-265 (Enlisted Personnel Discharge), in effect at the time, stated the discharge or release from the active military service of enlisted personnel for the convenience of the Government is the prerogative of the Secretary of the Army and would be effected only by his authority. Such authority may be given either in an individual case or by an order applicable to all cases specified in an order. b. Army Regulation 600-443 (Personnel Separation of Homosexuals), in effect at the time, stated the regulation prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army. c. A blue discharge (also known as a blue ticket) was a form of administrative military discharge formerly issued by the United States beginning in 1916. The blue ticket became the discharge of choice for commanders seeking to remove homosexual service members from the ranks. d. In 1993, the Department of Defense implemented the "Don't Ask – Don't Tell" (DADT) policy. Under this policy, the Army could no longer investigate 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. The guidance authorized Boards to amend the Soldier's narrative reason for discharge, modify their character of service to honorable, and change the reentry (RE) code to reflect immediate eligibility for reentry. However, 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. 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 former servicemember’s (FSM) 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 former service member’s petition and available military records the Board determined the FSM 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 former servicemember’s rank, characterization 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 Former Servicemember a new DD Form 214 for the period ending 16 May 1953 showing in: • item 3 (Grade/Rank) CPL/E-4 • 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, 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 ABCMR 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 615-265 (Enlisted Personnel Discharge), in effect at the time, stated the discharge or release from the active military service of enlisted personnel for the convenience of the Government is the prerogative of the Secretary of the Army and would be effected only by his authority. Such authority may be given either in an individual case or by an order applicable to all cases specified in an order. 3. Army Regulation 600-443 (Personnel Separation of Homosexuals), in effect at the time, stated the regulation prescribed procedures whereby homosexual personnel would be investigated and discharged from the Army. 4. A blue discharge (also known as a blue ticket) was a form of administrative military discharge formerly issued by the United States beginning in 1916. The blue ticket became the discharge of choice for commanders seeking to remove homosexual service members from the ranks. 5. The Department of Defense implemented the "Don't Ask - Don't Tell" (DADT) policy in December 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. a. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, with the 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) regarding discharges based on DADT or prior policies. The memorandum states, effective 20 September 2011, Service BCM/NRs and DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" SPD Code JFF) * characterization of the discharge to honorable * RE code to an immediately-eligible-to-reenter category b. The memorandum states BCM/NRs and DRBs may grant upgrades when applicants have met the following conditions: DADT, or similar prior policy, was the sole basis for the original discharge, and there were no aggravating factors in the record, such as misconduct. The memorandum further states that, although BCM/NRs and DRBs must evaluate each request on a case-by-case basis, the award of an honorable or general discharge normally affirms the absence of aggravating factors. c. The memorandum also recognized that, although BCM/NRs have a significantly broader scope of review and have the authority to provide much more comprehensive remedies than 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 Congress repealed DADT, 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 fact separation authorities issued an applicant 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// ABCMR Record of Proceedings (cont) AR20210014073 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1