IN THE CASE OF: BOARD DATE: 9 January 2023 DOCKET NUMBER: AR20220006521 APPLICANT REQUESTS: her character of service upgraded to honorable in lieu of uncharacterized APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 request her character of service be upgraded to honorable. She was accused of homosexuality admission and harassed daily but never gave any admission to this. It is no longer a requirement anyway. 3. The applicant enlisted in the United States Army Reserve on 27 April 1996 for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 4 September 1996. 4. The applicant completed basic combat training (BCT) at Fort Leonard Wood, MO and was transferred to Fort Bliss, TX for advanced individual training (AIT) effective 8 November 1996. 5. A DA Form 4856 (General Counseling Form) shows the applicant was counseled on 1 December for exiting a taxi alone. She was asked where her battle buddy was and instructed to see her drill sergeant for a counseling with her battle buddy. She approached her drill sergeant with PVT and stated she did not have a battle buddy because none of the females wanted to be around her. When asked why, she stated she was a homosexual. She was advised she was counseled for unsatisfactory performance. If such conduct continues, she may be subject to a bar to reenlistment, reduction in grade, revocation of her security clearance or separation with a character of service as uncharacterized, honorable, general, or under other than honorable conditions and she may encounter significant prejudice in civilian life. Any early separation might result in a loss of GI Bill or VEAP, educational benefits, and may be punished under the Uniformed Code of Military Justice (UCMJ). 6. A Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination) show the applicant underwent a separation medical examination. She was found qualified for separation under provisions (UP) of Army Regulation (AR) 635-200 chapter 15. 7. A DA form 3822-R (Report of Mental Status Evaluation) dated 17 December 1996 shows the applicant had no mental disease or defect which warrants disposition through medical channels. The situation presented by this soldier is not, in the opinion of this examiner, amenable to treatment, transfer, or disciplinary action. She is psychologically cleared for any administrative action deemed appropriate by command. 8. A DA Form 2823 (Sworn Statement) shows the applicant made the following statement under oath: On 1 December 1996, she went to Senior Drill Sergeant C_ and told him she was a homosexual and that she couldn’t adapt to the military lifestyle. Her told her to talk to the chaplain about how she felt. She also told the chaplain that she couldn’t adapt and she felt very uncomfortable being here. On 2 December 1996 she was instructed to speak with the First Sergeant. She told her she was a homosexual and wanted out of the Army because she felt extremely out of place and can’t adapt to the military lifestyle. She was a homosexual before she joined the Army and will continue to be a homosexual after she leaves the Army. 9. A Statement for the Record, subject: Request for Chapter 15 Discharge, dated 18 December 1996, shows: a. The applicant wishes to inform the command she is a homosexual. She therefore request honorable discharge under the provisions of AR 635-200, Chapter 15. She has not committed any homosexual acts at this point. She believes that if she remains on active duty, she will, in the future, commit homosexual acts which violate current Army Regulations. She also fears retribution by the chain of commands in her unit if this matter is not handled with great care. b. Rather than violate Army rules or regulations, she requests discharge under Chapter 15, AR 635-200. She has worked hard during her service in the Army. She does not believe that she has done anything which in any way would discredit her unit or the. Army. She therefore requests that an honorable discharge be issued. c. This request is not made to avoid a service obligation. She believes that her sexual orientation will result in future misconduct, as currently defined by regulation, unless she is discharged. 10. The appropriate authority initiated action to separate the applicant under the provisions of AR 635-200, chapter 15 for homosexuality on 19 December 1996. 11. The applicant was notified of the proposed action to separate her for homosexuality on 19 December 1996, specifically, on 1 December 1996, she was observed by her Drill Sergeant exiting a taxi alone. She was instructed by her Drill Sergeant to report with her battle buddy to receive counseling on going places alone at which time she stated she did not have a battle buddy because she was a homosexual. Subsequently she submitted a statement admitting homosexuality. She was advised: a. She was recommended to receive an honorable discharge. The separation authority is not bound by his recommendation as to characterization of service. The separation authority may direct that her service be characterized as honorable or under honorable conditions, or she may receive an entry level separation (uncharacterized). b. She has the right to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days). c. She may submit written statements on her own behalf. d. She may obtain copies of documents that will be sent to the separation authority supporting the proposed separation. e. She may waive her rights in writing and may withdraw any such waiver at any time prior to the date the separation authority orders, directs, or approves her separation. f. She is required to undergo a complete medical examination and a mental status evaluation. 12. On 19 December 1996, she acknowledged receipt of notification of proposed separation and waived her right to consult with an attorney. She waived consideration of her case by an administrative separation board and a personal appearance. She did not submit statements on her own behalf. She indicated she understood: a. She may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued. b. She may, up until the date the separation authority orders, directs, or approves her separation, withdraw this waiver and request that an administrative separation board hear her case. c. She will be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge. 13. The applicant’s DD Form 214 shows she was discharged on 20 December 1996 under the provisions of AR 635-200, paragraph 15-3b for homosexual admission with an uncharacterized character of service. 14. The applicant provided a letter from the National Personnel Records Center stating the type of discharge show as uncharacterized separation - Entry Level Separation. Entry Level Status is defined as the first 180 days of continuous active duty or active duty for training. A separation initiated while a member is in entry level status may be described as an uncharacterized entry-level separation. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. One possible outcome was to grant relief; however, the majority of Board members determined relief was not warranted. Governing regulation provides that a separation will be described as uncharacterized if the separation action is initiated within the first 180 days of active duty service. As such, her DD Form 214 properly shows the service as uncharacterized. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for the character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7 states only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for, which called or ordered to AD or ADT, or where required under specific reasons for separation, unless an entry- level status separation (uncharacterized) is warranted. b. Paragraph 3-9 (Uncharacterized Separations) states a separation will be described as an entry level separation if processing is initiated while a member is in entry level status. c. Entry level status is defined for Regular Army soldiers, as the first 180 days of continuous active duty or the first 180 days of continuous AD following a break of more than 92 days of active military service. d. Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority. Separation under this paragraph is the prerogative of the Secretary of the Army. e. Paragraph 15-3b provides for the separation of a Soldier that has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the soldier has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A statement by the Soldier that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The Soldier shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he or she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. The Soldier bears the burden of rebutting the presumption. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation prescribes that SPD code JRA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 15-3a, based on commission of a homosexual act. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 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, 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. a. 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" * SPD code to "JFF" * characterization to "HONORABLE" * RE code to an immediately-eligible-to-reenter category b. For the above corrections/amendments 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 DRB's, 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 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) AR20220006521 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1