IN THE CASE OF: BOARD DATE: 4 March 2022 DOCKET NUMBER: AR20210015419 APPLICANT REQUESTS: An upgrade of his under honorable conditions, general characterization of service to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 discharged for homosexuality and his discharge should be changed to honorable. His intentions were to retire from the military. 3. The available evidence shows the applicant entered active duty for training and served honorably in the Regular Army (RA) from 18 June to 17 October 1978, (4 months). He was issued a DD Form 214 (Report of Separation from Active Duty), for this service. 4. He also served honorably in the RA from 1 December 1981 to 20 November 1984. He was not issued a DD Form 214 for this service. He also served in Germany from 24 August 1982 to 12 September 1983. 5. On 21 November 1984, he immediately reenlisted in the RA for 4 years in pay grade E-4. He held military occupational specialty 11B (Infantryman). He served in Germany from 9 May 1985 to 20 April 1987. The highest rank/grade he achieved was sergeant/E-5. 6. An AF Form 1168 (Statement of Suspect), dated 11 December 1986, shows the applicant was suspected of being involved in offenses of homosexual activity. He acknowledged in writing by annotating and signing a statement indicating he was explained his rights. a. On the same date he made a written statement indicating on or about the second week of January [1986], he was visiting with some American and German friends near Heilbronn Germany and he was approached by a German who invited him to stay at his apartment and he did. After they got there he was shown his bed and the German puttered around the apartment a while. It was only a one room apartment. The German asked him if he could give him a “blow-job” and he said, “Yes.” While this was going on, he was masturbating the German. Later in the year around the 3 July [1986] weekend a friend stayed at his apartment and they had been drinking all-night and watching X-rated movies. The German gave him oral sex and he masturbated him. Around 19 September [1986], he went to the Wurzburg Craft Shop to see if his car was ready, he was visiting a friend and some of their friends came over, they were joking and drinking, and one guy said his friend gave better oral sex than a girl. He was drunk, so he laughed and said prove it, so he did. b. He refused to give the names of his friends. 7. A Report of Investigation, dated 11 December 1986, shows: a. On several occasions the applicant engaged in homosexual activities with both civilian and military males. b. Statutes: Homosexual Activities. c. Background: This investigation was initiated as a result of information provided by another individual. d. Interview of the Applicant: On 11 December 1986, the applicant was advised of his rights in accordance with Article 31, Uniform Code of Military Justice, which he acknowledged. During the interview the applicant acknowledged during the second week of January 1986, he allowed a German male to perform oral sex on him, at the same time [he] performed manual masturbation on the German male. During the third week of July 1986, a male friend who is in the Army was at his quarters, [off post] watching X-rated movies and he allowed the friend to perform oral sex on him, at the same time [he] manually masturbated him. On 19 September 1986, he was at a friend's apartment in Wurzburg, Germany and there were other people present, someone stated his friend could give “head” better than any girl and he said prove it, and the person did. The applicant refused to give the names of his friends, because he did not want to put them through an investigation such as this. e. Investigative Status: Closed. 8. A Report of Mental Status Evaluation, dated 5 January 1987, shows as part of the discharge process, he was evaluated and was determined to have the mental capacity to understand and participate in proceedings [deemed appropriate by his chain of command]. 9. On 5 January 1987, he also underwent a medical examination which also determined he was qualified for separation. 10. On 22 January 1987, the Chief, Administrative Law, determined the applicant’s separation under the provisions of chapter 15-3, Army Regulation (AR) 635-200. 11. On 26 January 1987, he accepted nonjudicial punishment for being absent without leave (AWOL) from his place of duty (Frankfurt International Airport) on 20 and 21 December 1986 from 0730 to 1630 hours. His punishment consisted of 14 days of extra duty. 12. On 20 February 1987, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 15, AR 635-200 (Personnel Separations) for homosexuality. The specific reason for the discharge was the applicant stated in a sworn statement given to an Air Base Security Police Investigator, dated 11 December 1986, that he received oral sex and masturbated another male on at least two occasions, during January and July 1986. He was also advised the least characterization of service or description he could receive was general, under honorable conditions. 13. On 20 February 1987, the applicant acknowledged receipt of the commander's notification and was afforded the opportunity to consult with legal counsel. He was advised of the bases for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. 14. On 20 February 1987, his immediate commander initiated a separation action against him in accordance with AR 635-200, due to homosexuality. The commander stated the applicant admitted in a sworn statement dated 11 December 1986 that was given to an Air Base Security Police Investigator that he received oral sex and masturbated another male, on at least two occasions, during January and July 1986. He also related to the commander that he was a homosexual and actively pursued this lifestyle. 15. On 26 February 1987, his intermediate commander recommended separation in accordance with AR 635-200, due to homosexuality. 16. On 4 March 1987, the separation authority approved the applicant's discharge under the provisions of chapter 15, AR 635-200. Accordingly, he was discharged on 21 April 1987. His DD Form 214 shows he completed 5 years, 4 months, and 21 days of net active service this period. His awards are listed as the Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Good Conduct Medal, Army Achievement Medal, Expert Infantryman Badge, Air Assault Badge, and Expert Marksmanship Qualification Badge, Rifle (M-16). It also shows in: * Character of Service, Under Honorable Conditions [General] * Separation Authority, AR 635-200, Paragraph 15-3a * Separation Code, “JRA” * Reentry Code, “RE-4” * Narrative Reason for Separation, Engaged in Homosexual Acts 17. The applicant’s discharge proceedings for homosexuality were conducted in accordance with law and regulations in effect at the time. There were no aggravating factors in the available evidence. 18. In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under this policy the military was banned from investigating 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. a. The guidance authorized Boards to amend the Soldier's narrative reason for discharge to "Secretarial Authority" with the SPD code JFF, modify their character of service to honorable, and change the (RE) code to reflect immediate eligibility (RE-1). b. 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. 19. The applicant argues that he was discharged for homosexuality and his discharge should be changed to honorable. 20. The law has been changed and current standards may be applied to previously- separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed. The evidence of record shows the applicant’s record is void of adverse counseling statements and disciplinary action. 21. In accordance with Department of Defense (DOD) guidance, the applicant’s overall record contains no evidence that would present a barrier to correcting his record to show he was separated by reason of Secretarial Authority (Paragraph 5-3, AR 635-200), with an SPD code of “JFF,” and an RE code of “1.” 22. The applicant completed 5 years, 4 months, and 21 days of net active service this period. He also completed 2 months of prior active service. In reaching its determination, the Board can consider the applicant's petition, the new laws, and his service record, in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon a change in DoD policy relating to homosexual conduct, the Board concluded that making the changes to the applicant's DD Form 214 was appropriate. 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 21 April 1987 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. 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. AR635-200, in effect at the time, prescribed the criteria and procedures for the separation of homosexual personnel from the Army. a. Homosexual personnel, irrespective of sex, were not permitted to serve in the Army in any capacity. Prompt separation was mandatory. The regulation defined three classes of homosexuality: (1) Class I - involving an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate or consent. (2) Class II - cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I. (3) Class III - consists of homosexual individuals who have not engaged in homosexual acts while in active military service. b. When an investigation clearly indicated an individual was a class II homosexual, he/she was to be afforded the opportunity to accept a discharge. If not accepted, the commander was to forward the case to the general court-martial convening authority for action. Action could include retention, appropriate action under the Uniform Code of Military Justice, or separation. c. The separation approval authority determined the character of service, but honorable or general discharges were normally only awarded in cases where the Soldier had disclosed his/her homosexual tendencies when entering the service, if the Soldier served over an extended period of time, or if he/she performed in an outstanding or heroic manner. Upon discharge determination, the Soldier was reduced to PV1/E-1. 3. The DADT policy was implemented in 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. 4. 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) to follow when taking action on applications from former service members discharged under DADT or prior policies. The memorandum states that: a. Effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * Narrative reason for discharge to “Secretarial Authority” * SPD Code: JFF * Characterization of the discharge to honorable * Reentry Code (RE) code to an immediately-eligible-to-reenter category (RE-1) b. For the above upgrades to be warranted, 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, and there were no aggravating factors in the record, such as misconduct. 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. The memorandum also 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 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015419 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1