IN THE CASE OF: BOARD DATE: 29 July 2022 DOCKET NUMBER: AR20210015938 APPLICANT’S REQUEST: * His under other than honorable conditions (UOTHC) be upgraded to an honorable * His narrative reason for separation be changed to "for the better of the service" * His separation code be upgraded 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, 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 wants the corrections made because laws and policies have changed regarding discrimination based on sex. He served honorably for over 5 years before being discharged. He notes that a verbal "buddy" statement will be provided at a hearing. On his DD Form 149 he indicates "sexual assault/harassment" is related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 3. The applicant enlisted in the Regular Army on 15 August 1978. He reenlisted on 30 July 1981, for a period of 3 years. 4. The record indicates the applicant accepted nonjudicial punishment (NJP) on 20 December 1983, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty on 12 December 1983. 5. On 7 February 1984, the Criminal Investigative Division (CID) initiated an investigation on the charge of commission of a homosexual act by the applicant. During the investigation the applicant admitted to engaging in consensual homosexual acts with a fellow Soldier. 6. Court-martial charges were preferred against the applicant on 22 February 1984, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with two specifications of homosexual acts with a fellow Soldier on or about 30 January 1984 and 7 February 1984. 7. On 27 February 1984, the applicant's chain of command recommended he be tried by special court-martial empowered to adjudge a bad conduct discharge and separated from the service. 8. The complete facts and circumstance surrounding the applicant's discharge are not available. Except for the separation authority’s approval, the applicant's discharge packet is not filed in his official military personnel file (OMPF). A Decision Paper, dated 2 April 1984, shows a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service was recommended for approval by the Staff Judge Advocate. 9. On 11 April 1984, the applicant waived his right to a separation medical examination. 10. The separation authority approved the applicant’s request for separation and directed the applicant be reduced to the lowest enlisted grade with the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 13 April 1984, under the provisions of Army Regulation 635-200, Chapter 10. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. His DD Form 214 shows his separation code as "KFS"; his reentry code as "3, 3c"; and his narrative reason for separation as "for the good of the service – in lieu of trial by court-martial." It further shows: * he had 5 years, 7 months, and 29 days of net active service * he was awarded or authorized the Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon and the Sharpshooter Qualification Badge with Rifle bar 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. In response to a request to the U.S. Army Criminal Investigation Division, U.S. Army Crime Records Center for a sanitized report of investigation, a copy of a redacted report of a 1986 investigation for homosexual acts between a Soldier and the applicant as a civilian, was provided. 14. 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. 15. 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. 16. 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, USC, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when acting on applications from former service members discharged under DADT or prior policies. 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 13 April 1984 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 15-4A, as then in effect, provided 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. Chapter 15 prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces. In all other cases, the type of discharge will reflect the character of the Soldier's service. 3. The Don't Ask, Don't Tell Repeal Act of 2010 (H.R. 2965, S. 4023) established a process for ending the DADT policy (10 USC 654), thus allowing gay, lesbian, and bisexual people 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. 4. 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, USC), 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. a. The memorandum provides that effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * characterization of the discharge to honorable (if appropriate) * separation authority to "Army Regulation 635-200, paragraph 5-3" * narrative reason for discharge to "Secretarial Authority" * separation code to "JFF" * reentry (RE) code to an immediately-eligible-to-reenter category b. if the above corrections 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. The memorandum further states that 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. 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 Department of Defense (DoD) policy that broad, retroactive corrections of records from applicants discharged under DADT (or prior policies) are not warranted. Although DADT was 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 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20210015938 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210015938 1 ABCMR Record of Proceedings (cont) AR20210015938 1