IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220002051 APPLICANT’S REQUEST: The applicant requests, in effect: * to change her separation authority, separation code, reentry code, and narrative reason for separation * to change her last name * a personal appearance before the Board 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) * Sworn Statement * Commander’s Request for Mental Health Evaluation 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 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: a. She would like her separation coding and re-entry coding reviewed and upgraded/corrected to reflect the Don't Ask Don't Tell (DADT) Policy being termed. Please also update her records to reflect her current last name. Her record reflects the honorable part of her service and her character. The separation under the DADT policy and how it was enforced and influenced upon her as a young 20-year-old with not support except to be forced out of the military reflects differently on her character as a deserving and proud veteran. b. She was honorably separated for sexual orientation under DADT policy. The applicant would like her separation coding and reentry coding reviewed and upgraded if applicable due to the policy being termed and its pressure during that time of service. The influence and pressure of the Don't Ask Don't Tell policy during her time of service by senior leadership, Judge Advocate General (JAG) consultations along with forced (per policy regulation) mental health evaluation/consultation for her sexual orientation was unacceptable/unethical. The applicant felt forced/obligated/pressured to reveal/admit her sexual orientation. c. She was advised to "write a statement" admitting her "homosexuality" under this policy so a discharge could be completed. With her discharge being honorable, the applicant would like and deserves for her service to reflect just that and the ability to be able to obtain earned veteran benefits and what could have been reentry when she was under the qualifying age for reenlistment. The policy and pressures did not allow her to finish her service commitment or be able to obtain deserved veterans benefits for her time spent in active service. She wishes for her separation coding to be upgraded to allow for benefits and reflect a positive reentry per her 16 months of active duty. 3. The applicant enlisted in the Regular Army on 5 September 1997. Her enlistment document and DD Form 214 shows her last name as. 4. On 5 October 1998, she provided a sworn statement and wrote, in pertinent part, when she enlisted into the military, she had homosexual thoughts. She still joined knowing this, not thinking it would limit her career or lifestyle. She engaged in her thoughts of homosexuality since being on active duty and will continue to engage in homosexual acts. She requested to be separated from military service under the military’s policy for homosexuality. 5. She was psychiatrically cleared on 14 October 1998 for any administrative action deemed appropriate by the commander, and medically cleared for administrative separation on 21 October 1998. 6. On 10 December 1998, her commander notified her that he was initiating action to discharge her from the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, for homosexuality. The reason for the proposed separation was based on the applicant’s sworn statement declaring she was a homosexual. The commander recommended she receive an Honorable Discharge Certificate and advised the applicant of her rights. a. The applicant waived consulting counsel and representation by legal counsel. She indicated she would submit a statement in her own behalf; however, it is not available. b. The commander formally recommended her for discharge and the chain of command recommended approval. c. The separation authority approved the recommendation on 18 December 1998 and directed the applicant be furnished an Honorable Discharge Certificate. 7. Accordingly, she was honorably discharged on 7 January 1999, under the provisions of AR 635-200, paragraph 15-3b, due to homosexual admission. She had served 1 year, 4 months, and 3 days of active service during her current enlistment of 4 years and was issued a separation code of “JRB” and an RE Code of "3." 8. On 11 May 2022, the Case Management Division, Army Review Boards Agency sent an email to the applicant requesting she provide a copy of her corrected Birth Certificate or a copy of her legal name change. She did not respond. 9. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. The information entered thereon reflects the conditions as they existed at the time of separation. For item 1, compare original enlistment contract or appointment order and review official record for possible name changes. If a name change has occurred list other names of record in block 18. 10. The 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. 11. 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. 12. 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 taking action on applications from former service members discharged under DADT or prior policies. a. This memorandum provided that effective 20 September 2011, Service DRBs and BCM/NRs should normally grant requests in these cases to change the following: * item 24 to "Honorable" already has * item 25 to "Army Regulation 635-200, paragraph 5-3" * item 26 to "JFF" * item 27 to "1" * item 28 to "Secretarial Authority" b. 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 c. 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. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15, paragraph 15-3b, states in pertinent part, a Soldier will be discharged if he/she has made a statement that he/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/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. 14. Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 15. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency.? BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that partial relief was warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. Based upon the current narrative reason entered on the applicant’s DD Form 214 and current DoD the Board concluded there was an injustice present which warranted correction. 3. The Board further determined the evidence presented insufficient to warrant a change to that portion of the request pertaining to a change of last name as reflected within her record. Documentation is void evidence of a name change and in the absence of supporting documentation having been provided by the applicant, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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 a new DD Form 214 for the period ending 21 May 2002 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 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 the requested name change. 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 Army Board for Correction of Military Records (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 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. Paragraph 5-6 (Rules for completing the DD Form 214) provides detailed instructions for data required in each block of the DD Form 214. For Block 1, Name. Compare original enlistment contract or appointment order and review official record for possible name changes. If a name change has occurred list other names of record in block 18 (Remarks). 3. The 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. 4. The DADT Repeal Act of 2010 (Title 10, USC, Section 654) 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. 5. 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 DRBs and Service BCM/NRs to follow when taking action on applications from former service members discharged under DADT or prior policies. a. This memorandum provided that effective 20 September 2011, Service DRBs and BCM/NRs should normally grant requests in these cases to change the following: * item 24 to "Honorable" * item 25 to "Army Regulation 635-200, paragraph 5-3" * item 26 to "JFF" * item 27 to "1" * item 28 to "Secretarial Authority" b. 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 c. 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. 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, Department of Defense 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. e. The DD Form 214 should be reissued in lieu of the DD Form 215 (Correction of the DD Form 214), to avoid a continued record of the homosexual separation. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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. 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) AR20220002051 1 ABCMR Record of Proceedings (cont) AR20220002051 1