IN THE CASE OF: BOARD DATE: 22 June 2022 DOCKET NUMBER: AR20210015054 APPLICANT’S REQUEST: The applicant requests, in effect, the correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) by making the following changes: * Remove the current entry in item 25 (Separation Authority) and replace it with paragraph 5-3 (Secretarial Authority), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * Revise item 28 (Narrative Reason for Separation) from "Expeditious Discharge Program (EDP), Failure to Maintain Acceptable Standards for Retention" to "Secretarial Authority" * Amend item 26 (Separation Code (SPD) to read, "JFF" * Delete the current entry in item 27 (Reenlistment Code) and enter "RE-1" (immediately-eligible-to-reenter) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, that in today's military, because of changes in the law and public opinion, LGBTQ (lesbian, gay, bisexual, transgender, and queer) personnel can serve with pride; no one singles them out as being unacceptable. During the short time she served on active duty, the applicant excelled in both basic combat training (BCT) and advanced individual training (AIT); until they told her she was a disgrace to her country, the applicant had planned on making the Army her career. She declares that what the military did to her was unfair and unjust, and the current narrative reason for separation on her DD Form 214 has cost her promotions and pay raises at her place of employment. 3. The applicant's service records show: a. On 18 October 1979, the applicant enlisted into the Regular Army for 3 years; she was 20 years old. Upon completion of BCT at Fort McClellan, AL, orders transferred her to the USAISD (U.S. Army Intelligence School, Fort Devens) detachment, located at a U.S. Navy (USN) training facility in Pensacola, FL. At this facility, the applicant was to undergo AIT for military occupational specialty (MOS) 05K (Electronic Warfare/Signal Intelligence Non-Morse Interceptor). The applicant arrived at her AIT unit, on or about 3 January 1980. Effective 27 February 1980, the applicant's AIT leadership promoted her to private (PV2)/E-2. b. On 24 March 1980, the applicant's AIT commander awarded the applicant a letter of appreciation for outstanding academic achievement. The commander stated the applicant had completed what was normally 41.5-day course in half the time, saving the Army $1,474.80, and he lauded the applicant's superior self-motivation and dedication to duty. c. On or about 24 April 1980, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for having been absent without leave from 21 until 22 April 1980 (1 day). d. On or about 25 April 1980, the applicant's AIT commander referred her for a behavioral health evaluation after the applicant had admitted to having homosexual tendencies and because she had abused alcohol. On 1 May 1980, a USN Lieutenant Commander (LCDR/O-4) provided his report, stating the following: (1) Concerning the applicant's possible abuse of alcohol, the LCDR remarked on the applicant's evasiveness in answering his questions, and noted the applicant had only affirmed she "may have had a problem two months ago when her friends said she was drinking too much." The LCDR recommended a more thorough assessment due to the lack of response. (2) With regard to homosexual tendencies, the applicant admitted to a 4-year homosexual history, and she stated she was comfortable with her sexual orientation decision. (3) The LCDR offered the following impressions of the applicant: * (1) "Immature traits, (illegible) impulsivity..." * (2) "Homosexuality, by pt. history" * (3) "ETOH use deferred" e. On 28 May 1980, the applicant's AIT commander advised her, via memorandum, that he was initiating separation action against the applicant, under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)), AR 635-200. The commander stated the reason for his action was the applicant's inability to adapt socially or emotionally, in addition, he was recommending her for a general discharge, but the final decision as to character of service rested with the separation authority. f. On or about 28 May 1980, the applicant acknowledged the notification of her proposed separation action, and she confirmed she voluntarily consented to the discharge; in addition, the applicant elected not to submit statements in her own behalf, and affirmed her leadership had afforded her the opportunity to consult with an officer of the Judge Advocate General's Corps. g. On 3 June 1980, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 4 June 1980, orders discharged the applicant accordingly. Her DD Form 214 shows she completed 7 months and 16 days of her 3-year enlistment contract, with lost time for the period 19800422-19800422; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed two marksmanship qualification badges. h. On 24 February 1981, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service; she argued that she always performed her duties in a military manner, was a good student, and always wore her uniform proudly. The applicant believed the Army had violated her First Amendment rights. On 2 February 1982, the ADRB voted to upgrade the applicant's discharge to honorable and reissued her an amended DD Form 214 reflecting the change. 4. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. During the applicant's era of service, commanders could initiate separation action, under the provisions of paragraph 5-31, AR 635-200, against Soldiers who had demonstrated they could not or would not meet the Army's standards. (1) The intent of EDP was to provide commanders with a means of expeditiously eliminating substandard Soldiers, without the commander incurring the administrative burden typically associated with administrative discharges. However, the regulation stipulated EDP was not a "panacea," and did not relieve commanders of their professional obligation to make a sincere effort to produce good Soldiers from seemingly poor ones. (2) The Soldiers had to have completed at least 6, but not more than 36 months of continuous active duty and be on their first enlistment. In addition, commanders could only separate Soldiers if they voluntarily accepted the separation. The available characters of service could be either honorable or under honorable conditions (general). b. At the time of the applicant's separation, the Army' stated policy on homosexuality was that it was incompatible with military service, and the Army viewed persons with homosexual tendencies as seriously impairing the discipline, good order, morale, and security of a military unit. (1) Under AR 635-200, chapter 13 (Separation for Unsuitability), paragraph 13-4d (Homosexuality (Homosexual Tendencies, Desires, or Interest without Overt Homosexual Acts), commanders were to separate Soldiers with homosexual tendencies who had not engaged in a homosexual act during their military service. (2) The regulation stated commanders were to investigate thoroughly any indications of a Soldier's possible homosexual tendencies. If the investigative results substantiated the allegations, the commander then referred the Soldier for a medical evaluation. Upon approval of a commander's separation recommendation, separation authorities could issue either an honorable or a general discharge under honorable conditions, as warranted by the Soldier's service record. c. 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 based on the Army's "Don't Ask – Don't Tell" (DADT) policy or a similar earlier policy. (1) The guidance authorized Boards to make the below-listed amendments, but, 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 there could be no other aggravating factors, such as misconduct, in the applicant's record. (2) The authorized changes were: * revise character of service to honorable * change narrative reason for separation to "Secretarial Authority" and SPD code to "JFF" * amend RE code to an immediately-eligible-to-reenter (i.e. RE-1) 5. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: After review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. 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 her leadership her sexual orientation and her 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 4 June 1980 showing * 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): Not Applicable REFERENCES: 1. Title 10, USC, 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 5-31 (Expeditious Discharge Program). Commanders could discharge Soldiers under the Expeditious Discharge Program when those Soldiers demonstrated they could or would not meet the Army's accepted standards (1) The intent of EDP was to provide commanders with a means of expeditiously eliminating substandard Soldiers, without the commander incurring the administrative burden typically associated with administrative discharges. However, the regulation stipulated EDP was not a "panacea," and did not relieve commanders of their professional obligation to make a sincere effort to produce good Soldiers from seemingly poor ones. (2) The Soldiers had to have completed at least 6, but not more than 36 months of continuous active duty and be on their first enlistment. In addition, commanders could only separate Soldiers under this paragraph if they voluntarily accepted the separation. The available characters of service could be either honorable or an under honorable conditions (general). b. Chapter 13 (Separation for Unsuitability), paragraph 13-4d (Homosexuality (Homosexual Tendencies, Desires, or Interest without Overt Homosexual Acts), commanders were to separate Soldiers with homosexual tendencies who had not engaged in a homosexual act during their military service. (1) The regulation stated commanders were to investigate thoroughly any indications of a Soldier's possible homosexual tendencies. If the investigative results substantiated the allegations, the commander then referred the Soldier for a medical evaluation. (2) Upon approval of a commander's separation recommendation, separation authorities could issue either an honorable or a general discharge under honorable conditions, as warranted by the Soldier's service record. 3. The Army implemented the Don't-Ask-Don't-Tell (DADT) policy in 1993 during the Clinton administration; this policy banned the military from investigating service members about their sexual orientation. Service members could 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. A memorandum by the 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). a. The memorandum states that, effective 20 September 2011, Service DRBs and BCM/NRs should normally grant requests for upgrade of an adverse character of service and make the following changes: * change narrative reason for separation to "Secretarial Authority" and SPD code to "JFF" * revise character of service to honorable * amend RE code to an immediately-eligible-to-reenter (i.e. RE-1) b. For Board to grant upgrades, the circumstances of an applicant's separation must meet the following criteria: * 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 c. The memorandum further states that, although Boards must evaluate each request on a case-by-case basis, the award of an honorable or a general discharge normally indicates the absence of aggravating factors. d. The memorandum 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 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, DOD regulations implementing various aspects of DADT (or prior policies) were valid regulations during those same or prior periods. Thus, Boards should not consider the issuance of a discharge under DADT (or prior policies), by itself, as constituting an error or injustice sufficient to invalidate an otherwise properly taken discharge action. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015054 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210015054 1 ABCMR Record of Proceedings (cont) AR20210015054 1