IN THE CASE OF: BOARD DATE: 6 December 2022 DOCKET NUMBER: AR20210017435 APPLICANT REQUESTS: upgrade of his 1958 undesirable discharge and issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Representation Letter * Legal Brief by Counsel * Certification of Military Service * Applicant’s Sworn Statement, 22 November 2021 * Return from Germany/Travel Orders, 22 July 1958 * Discharge Orders, 30 July 1958 * Previous Letter from the Army Review Boards Agency * Under Secretary of Defense Memorandum, Subject: Correction of Military Records Following Repeal of Section 654 of Title I 0, United States Code * Under Secretary of Defense Memorandum, Subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice or Clemency Determination * College Transcripts * Similar ABCMR Docket/Record of Proceedings * Letter from the National Personnel Records Center, 20 May 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 applicant states he was separated with an Undesirable discharge after an (untrue) accusation of homosexuality. His discharge was pursuant to policies that policed sexual orientation and conduct, prohibiting the open service in the military by people who were lesbian, gay, or bisexual. These policies no longer exist. His discharge was unjust and inequitable. 3. Counsel states the applicant is an 85-year-old father of four, grandfather of eight, and great-grandfather of two. For over 60 years, the Army has denied him the dignity of an honorable characterization of service because, in 1958, a false accusation of homosexuality led to an "Undesirable" discharge. He seeks a new DD Form 214 and DD Form 256 with an Honorable characterization to reflect his faithful service, to reinstate in him the pride in his veteran status, and to eliminate the shame of his unjust and inequitable treatment. He has attempted to correct his record many years ago but was stymied because his personnel file appears to have been lost. He has supported this application with sufficient evidence to justify the relief he seeks, and the Board may not deny relief solely because it can no longer locate his military records. Counsel gives an introduction of the applicant’s service, goes over the applicant’s prior application that was administratively closed due to lack of records, and requests to excuse timeliness. The then gives a background of the applicant’s military service and goes over the Board’s authority. He makes the argument that: * Although there are no service records, he believes there is sufficient evidence to move forward on the applicant’s case * The applicant’s discharge was unjust and inequitable. * Relief is appropriate under the Stanley Memorandum that authorizes the relief requested here for members discharged under Don’t Ask Don’t Tell (DATL) or a similar policy * Relief is appropriate under the Board’s inherent authority as the Board has wide latitude in determining what constitutes an error or injustice * There is enough information to re-create a DD Form 214 for the applicant and grant the requested relief with an honorable characterization of service 4. The applicant provides a sworn statement, in which he states a. He joined the Army in February 1956, just about to turn 19 years old. Shortly thereafter, he was sent to Fort Dix, NJ for basic training. Basic training was rough and although it was hard, he did it. When he completed training, he felt a sense of pride and accomplishment. He felt like a man. After completing basic training, he was shipped off to Quartermaster School in Fort Lee, VA. I was surprised to see how segregated Virginia was. He didn't know anything about segregation; it was a new experience. And although he had lack friends in his neighborhood, he had a hard time understanding segregation. He was also puzzled when he saw a whole separate company of Puerto Ricans at Fort Dix, during basic training. He didn't understand why men were in separate units according to race or ethnicity. b. His first tour of duty was in Germany at "Coffey Barracks" at the 35th Quartermaster Battalion, 7th Army, in Ludwigsburg, Germany. He was assigned to a MASS (Modern Army Supply System), the 7763 MASS. He liked the unit and in a few short weeks, he was made the mail clerk. He was assigned a Jeep and went to the APO every morning to pick up the mail for our outfit. When I got back, he sorted it all out and distributed it to the officers and enlisted men. He loved the job. c. He bunked in the same room with two great guys,. They all became good friends. Everything was going great for the first few months, then the bottom seemed to fall out. His master sergeant told him that personnel wanted him transferred to another outfit. Apparently his MOS was not for a mail clerk but a supply handler. His Company Commander and the master sergeant tried their best to keep him on, but it was no use- he had to go. He was transferred to Petroleum Supply as a supply handler, which was right on the same post. At Petroleum Supply, all he did all day long was move five- gallon cans of gasoline around. He built pyramid stacks of a thousand cans or more. d. He bunked in the same room with a Black man named . They became good friends. Because of his friendship with him, he made a lot of enemies. His Company had a lot of bigots. At the time, the South was still very segregated. The bigots hated and him, and they let his know it in so many ways. A couple of times, he had a knife put to his throat and he had a few fist fights with some of them. One of the bigots was an acting Sergeant. On several occasions he heard him use racial slurs in referring to. They had a few run-ins and almost came to blows over his friendship with. One time the acting Sergeant and he did get into a physical fight. He started the fight, accusing him of trying to steal his girlfriend. All he did was dance with her, but I didn't know she was his girlfriend-she danced with a lot of guys. They had a scuffle in the downtown district one night, and he ended up giving him a bloody nose. e. After one year of service, he got a telegram, which said that his father had suffered a stroke. He was given emergency leave, and the Red Cross helped me get home. His dad recovered from the stroke, and he was glad about that. While he was on leave, he decided to marry his childhood sweetheart. He wasn't looking forward to going back to Germany, but he had no choice. After a few months back in Germany, in July 1958, he got a letter from his sister saying that his wife was pregnant with another man's baby. He was devastated and asked for another emergency leave, but it was denied. He still had six months left to service on his three-year contract. The day he received the letter, he went out and got drunk with one of his buddies. When they got back to the barracks, they started horsing around. A soldier named Hilton, who was gay, was walking through the hallway, and they started teasing him. He is not proud of it, but he didn't mean any harm and he was just fooling around. f. When he woke up the next morning, the MPs were in his room. They told him he was under arrest. He knew he didn't do anything bad; he thought it was for being drunk. Instead, they brought him to a doctor and asked a plot of weird questions, like "Did you like what you did?" He just went along and said "Sure," though he didn't know what they were talking about. Then one of the officers at the barracks told him what he had allegedly done: they said he had had sex with, and that the Officer of the Day had witnessed it. He couldn't believe what he was hearing. He would never do anything like that because he is not sexually interested in men. It turns out that the Officer of the Day that day was the bigoted acting sergeant who resented his friendship with and thought that he was trying to steal his girlfriend. g. The next day, he was brought before the Battalion Commander. He said to him: "Young man, what you did was disgusting. Here's what I'm going to do. I'll give you two choices: you can be on a plane tomorrow for the States, where you will be mustered out and given an undesirable discharge, or you can face a court martial here on base. If you choose the court martial, I can almost guarantee that you will go to prison." He denied the charges he the battalion commander believe him. He was barely 22 years old, was scared, and did not want to go to prison. So, he decided to take the Undesirable discharge. He was never given the opportunity to discuss his situation with a Judge Advocate General (JAG) defense lawyer, nor was he ever read his rights. h. He was discharged on August 1, 1958. He was not given a DD Form 214 or any other discharge documents, nor did he receive any in the mail later. On the plane ride back to the United States, he was seated next to the gay man he was accused of having sex with. Not only that, but they were handcuffed together all the way to the United States, which was humiliating for both. They were treated like the worst kind of criminals. told him that he didn't deny the accusations, and he was glad to get out of service. He was astounded. explained that he desperately needed to get out of the military because he was sick of the harassment, abuse, and mistreatment based on his sexuality, so he went along with everything they said. told him, "I'm tired of being harassed about my sexuality every day." He felt bad for him. Still, he didn't like being caught up in his nightmare, but he does not really believe the outcome would have been different for either of them if had denied the accusations. All that mattered was the words of a sergeant. i. After he left the Army, his wife gave birth the baby she had conceived with the other man and gave it up for adoption. They decided to stay together. He fathered four beautiful children of his own with her, and he has eight beautiful grandchildren and two great-grandchildren. He and his wife were divorced in 1968 and he then remarried in 1970, but that marriage also did not last. When he returned to in 1959, without an education, he had to take a low-level job. He started working at the Hotel, first as a busboy, then I was promoted to waiter. After two years and a lot of training, I was considered a professional tableside waiter. He worked at the for 11 years, until 1970. For the next 40 years, I worked in the hospitality industry in a variety of restaurants and hotels as a waiter, maître d, and even as a cook and a chef. In 1995, at the age of 58, he finally decided to go back to get a college education. He went to night school for three months for his GED; he took the test and passed it on the first try. In 1998, he earned an Associate of Arts degree, with High Distinction. After that, he studied History at State University of and I received a Bachelor of Arts degree in 2001. 5. The applicant's military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. This case is being considered using a separation order and a Certification of Military Service. 6. The complete facts and circumstances surrounding his discharge are not available for review. He was discharged on 1 August 1958 under the provisions of Army Regulation (AR) 635-89 (Personnel Separations – Homosexuality) with an Undesirable Discharge. He completed 2 years and 5 months of active service. He was assigned separation program number (SPN) 257 (Unfitness - Homosexual Acts). a. A Certification of Military Service issued by the National Archives on 22 April 1999 and on 20 May 2021, shows he served in the Regular Army as a private from 10 February 1956 to 1 August 1958. He received an Undesirable Discharge. b. Letter Order Number 7-273, issued by Headquarters, 35th Quartermaster Battalion, Germany on 22 July 1958, Subject: Separation (AR 635-205), SPN 257 shows: (1) He was released from assignment to the 531st Quartermaster Company (Petroleum Supply and assigned to 21st Replacement Detachment, Frankfurt for further assignment to Fort Dix NJ. (2) He would report no later than 23 July 1958 for processing and movement to Continental United States, Separation from the Service under the provisions of Army Regulation (AR) 635-89 (Personnel Separations - Homosexuals). (3) Enlisted Member will be given an Undesirable Discharge, DD Form 214, under the provisions of AR 635-205 and AR 635-89, SPN 257. c. Special Order Number 211, issued by the U.S. Army Personnel Center, Fort Dix, NJ on 30 July 1950 released him from assignment to the 18th Transportation Company and discharged him under the provision of AR 635-89 (Personnel Separations - Homosexuals), Undesirable Discharge, SPN Code 257, effective 1 August 1958. 6. There is no indication the applicant petitioned the Army Discharge Review Board for review of his discharge. 7. On 2 December 2013 and 20 August 2014, the Chief of Case Management Division informed the applicant by letter that the Board has requested his military records from the National Personnel Records Center (NPRC) in St. Louis, MO without success. A fire destroyed approximately 18 million service members' records at NPRC in 1973. It is believed his records were lost in that fire. Since sufficient records to determine exactly what happened in his case cannot be located, it is impossible for the Board to make a fair, impartial, and equitable determination on his application. In the absence of record evidence to the contrary, it must be presumed that what the Army did in his case was correct. The burden of proving otherwise is his responsibility. 8. Under Secretary of Defense (Personnel and Readiness) memorandum states effective 20 September 2011, Service boards 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, and RE code to an immediately-eligible-to-reenter category. For the upgrades to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT (Don't Ask Don't Tell) or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's available record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The applicant’s service records are not available for review. The only military document available is his discharge order showing he was discharged on 1 August 1958 under AR 635-89 with an undesirable discharge. Under DOD guidance, when taking action on applications from former service members discharged under "Don't Ask Don't Tell" (DADT) or prior policies, boards should normally grant requests. For the upgrades to be warranted, 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. b. Clearly, in the absence of the service record, Board members are unable to determine if there had been aggravating factors in the record, such as misconduct. Therefore, DOD guidance regarding upgrade of members separated under DADT is not possible. Nevertheless, Board members determined that in light of DOD policy, and due to length of time since his discharge, and his post service achievements, an upgrade to a fully honorable discharge is appropriate in this case. c. The Board determined that in the absence of his service records, it is not possible to issue the applicant a DD Form 214. At a minimum, the documents needed to process a DD Form 214 are his Enlistment/Induction Record, DA Form 24 or DA Form 20, orders for any and all awards and decorations, all assignment/reassignment orders, training certificates, Record of Emergency Data, promotion/reduction orders, complete separation packet, and separation orders. These are some of the source documents needed to properly build a DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant an appropriate Certification of Military Service showing his service from 10 February 1956 to 1 August 1958 was honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to issuing the applicant a DD Form 214. 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, U.S. 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 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government. Paragraph 2 stated, in pertinent part, that separation of enlisted personnel was the prerogative of the Secretary of the Army and would be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for convenience of the Government would be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such order. 3. Army Regulation 635-89 (Personnel Separations – Homosexuality), in effect at the time, set forth the basic authority for the separation of personnel for homosexuality. This regulation prescribed the authority, criteria, and procedures for the disposition of military personnel who were homosexuals and military personnel who engaged in homosexual acts or were alleged to have engaged in such acts. Classes of homosexuality were defined as indicated below. Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an undesirable discharge certificate. a. Class I homosexual acts were those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act. b. Class II homosexual acts were those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service. Class II also included all cases falling within Class I in which it was determined charges would not be preferred or, if charges were preferred, it was determined the charges would not be referred to a court-martial for trial. c. Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses. 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 (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under "Don't Ask Don't Tell" (DADT) or prior policies. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "Secretarial Authority" with a separation program designator (SPD) code of JFF * characterization of the service to honorable * the reentry eligibility (RE) code to an immediately-eligible-to-reenter category 5. For the above 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 6. 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. 7. 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 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 that same or prior period. 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. 8. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 9. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel/Active Duty Enlisted Administrative Separations) prescribes procedures for separation of enlisted personnel. a. Paragraph 3-7a, 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017435 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1