IN THE CASE OF: BOARD DATE: 18 May 2022 DOCKET NUMBER: AR20220000082 APPLICANT REQUESTS: A change of her narrative reason for separation. 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 the laws have changed and she does not believe she should be punished, due to previously existing laws. It was not her choice to be gay, she was born this way. If she had a choice she would have chosen to remain in the service. Her record shows she was a good Soldier and she loved being in the military. 3. The available evidence shows the applicant enlisted in the Regular Army (RA) on 28 April 1998. She held military occupational specialty 92G (Food Service Specialist). On 30 September 1998, she was assigned to Fort Riley, KS, with duties in her MOS. The highest pay grade she achieved was E-3. 4. On 19 August 1999, the applicant’s immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15, AR 635-200 (Personnel Separations) for homosexuality. The specific reason stated for the discharge was, on 6 July 1999, the applicant gave a statement admitting to homosexual activity and that she had a propensity toward homosexuality. She was also advised she was being recommended to receive an honorable discharge. 5. On 19 August 1999, the applicant acknowledged receipt of the commander's notification. On 20 August 1999, she acknowledged she was afforded the opportunity to consult with legal counsel. She was advised of the bases for the contemplated separation action for homosexuality, the type of discharge she 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 her. She further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her. She declined to submit statements in her own behalf. 6. On 20 August 1999, her immediate commander initiated separation action against her in accordance with AR 635-200, due to homosexuality. The commander stated, on 6 July 1999, the applicant admitted to homosexual activity and that she had a propensity toward homosexuality. 7. Her intermediate commanders recommended separation in accordance with Chapter 15, AR 635-200, due to homosexuality. 8. On 13 September 1999, the separation authority approved the applicant's discharge under the provisions of chapter 15, AR 635-200. 9. Accordingly, she was discharged on 4 October 1999. Her DD Form 214 shows she completed 1 year, 5 months, and 7 days of net active service this period. Her awards are listed as the Army Service Ribbon. It also shows in: * Character of Service, “Honorable” * Separation Authority, AR 635-200, Paragraph 15-3B * Separation Code, “JRB” * Reentry Code, “RE-4” * Narrative Reason for Separation, Homosexual Admission 10. 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. 11. 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 “JRB,” 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. 12. The applicant argues the law concerning homosexuality has changed and her discharge should be upgraded based on that change. 13. 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. 14. In accordance with Department of Defense (DOD) guidance, the applicant’s overall record contains no evidence that would present a barrier to correcting her record to show she 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.” 15. The applicant completed 1 year, 5 months, and 7 days of net active service this period. 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, the Board found 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 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 October 1999 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. ADMINISTRATIVE NOTE(S): NA 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. AR 635-200, 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) AR20220000082 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220000082 1 ABCMR Record of Proceedings (cont) AR20220000082 1