IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210017481 APPLICANT REQUESTS: a. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a change in his Separation Code, Reentry Code and Narrative Reason for Separation. b. Personal appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 23 July 2021 * DA Form 2-1 (Personnel Qualification Record) 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 applicant states he was not gay. He was homesick and missed his fiancé. After speaking with his fiancé, a man that he thought was his friend and mentor, he lied about being gay. This was a mistake; he was in bondage and tortured by his friend/mentor whom groomed and sexually assaulted him in High School. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 January 2000 and was awarded military occupational specialty 52C (Utility Equipment Repairer). b. A letter, dated 30 August 2000 shows, in part, the applicant informed his command that he was a homosexual. c. On 14 September 2000, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 15, for homosexual conduct. d. On 14 September 2000, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for homosexual conduct. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, chapter 15, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He declined making a statement on his own behalf. He acknowledged: * he understood the effect of any waiver of rights; * he understood that, as the result of issuance of a discharge certificate/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading e. Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 15, for homosexual conduct and recommended an honorable discharge f. On 15 September 2000, the separation authority approved his discharge under the provision of AR 635-200, chapter 15, and directed the issuance of an honorable discharge. g. Orders Number 262-003, issued by Headquarters, 101st Airborne Division (air Assault) and Fort Campbell, 18 September 2000 shows, in part, the effective date of discharge as 22 September 2000. h. He was honorably discharged on 22 September 2000. He completed 8 months, and 11 days of net service this period. His DD Form 214 shows in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 15-3b * item 26 (Separation Code) – JRB * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – Homosexual Conduct/ Admission 4. His official military personnel file (OMPF) is void of any misconduct or derogatory information. 5. Army Regulation 635-89, 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. The regulation states, in pertinent part, that Class III homosexuals were personnel who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offenses. Class II consists of those cases in which personnel have engaged in one or more homosexual acts not within the purview of Class I (homosexual act accomplished by assault or coercion; unwilling participant; cooperation or consent was obtained by fraud; or homosexual act with child under the age of 16 years) during military service. Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate. 6. 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. 7. 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" and the SPD code to JFF * characterization of the discharge to honorable * Reentry Eligibility (RE) code to an immediately-eligible-to-reenter category 8. 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 9. 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. 10. 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 periods. Thus, the issuance of a discharge under DADT or prior policies should not be considered to constitute an error or injustice by itself that would invalidate an otherwise properly-taken discharge action. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: 1. 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. 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 based upon a change in DoD policy relating to the separation of personnel for homosexuality, the Board concluded that making the changes to the applicant's DD Form 214 was appropriate. Therefore, relief was granted. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 22 September 2000 showing in: * 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, 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 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 of the version in effect at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. 3. 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, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under DADT or prior policies. 4. This memorandum states that, effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * separation program designator code to "JFF" * character of service to honorable * RE code to an immediately-eligible-to-reenter category 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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) AR20210017481 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1