ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2022 DOCKET NUMBER: AR20220002864 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by: •changing his uncharacterized character of service to entry level separation •deletion of derogatory information (unspecified items) •showing all of his decorations and awards APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •DD Form 214, for the period ending 11 April 1990 •National Personnel Records Center letter FACTS: 1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states in 2011, the Department of Defense (DoD) recognized thatmany Veterans received discharges only because of their sexual orientation. Theseparation took a lot out of him and took away his confidence. He was a leader andcould have been successful in the Army, he wanted to serve his country. He washarassed or teased by his superiors on a constant basis. He was in the top 10 percentof his unit with test scores and performance. He was a great soldier and could havebeen even better. He had no disciplinary issues and was a very good teammate. Hewas treated like he was less than his counterparts, even though his performance wasjust as good and, on most occasions, better. He achieved expert qualifications with theM-9 pistol, M-16 rifle, and the grenade. 3.The applicant enlisted in the Regular Army on 9 January 1990, for 3 years. He didnot complete initial entry training and was not awarded a military occupational specialty. 4.The applicant was formally counseled on 9 March 1990, for excessive use of sickcall. During the counseling, the applicant that he wanted to be out of the Army. Later, hedisclosed that it may be due to possible homosexuality. He was referred for furthercounseling and a mental health evaluation. 5.On 12 March 1990, the applicant consulted with the Community Mental HealthService for evaluation. He stated that he was experiencing unusual adjustmentproblems, he was becoming aroused in the shower room, and that he had a 3-year pre- service history of homosexual activity. He was psychiatrically cleared for administrativeaction deemed appropriate by command. 6.The applicant consulted with the base chaplain on 20 March 1990. The Chaplinstated he believed the applicant was making a true statement about his sexualorientation. 7.The applicant's immediate commander notified the applicant on 30 March 1990, ofhis initiation of separation action under Army Regulation 635-200 (PersonnelSeparations – Enlisted Personnel), Chapter 15, by reason of his homosexual admission. He recommended the applicant receive an uncharacterized separation. 8.A DA Form 3822-R (Report of Mental Status Evaluation), dated 3 April 1990 showsthe applicant had no abnormalities in behavior, level of orientation, mood, thinkingprocess, thought content or memory. He was determined to be mentally capable tounderstand and participate in any proceedings deemed appropriate by command. 9.The applicant consulted with legal counsel on 4 April 1990. He was advised of thebasis for the contemplated discharge, the possible effects of a separation underChapter 15, and the procedures and rights that were available to him. The applicantwaived his administrative rights and elected to submit a statement in his own behalf. Bystatement, dated 16 March 1990, the applicant stated that he was a homosexual. 10.The applicant's immediate commander formally recommended his separation, under the provisions of Army Regulation 635-200, Chapter 15. The separation authorityapproved the recommendation on 6 April 1990 and directed the issuance of an entrylevel separation. 11.The applicant was discharged on 11 April 1990. His DD Form 214 shows he had3 months and 3 days of net active service and contains the following entries: •item 13 (Decorations, Medals, Badges, Citations and Campaign RibbonsAwarded or Authorized) – Expert Marksman Badge with Pistol and HandGrenade bars •item 24 (Character of Service) – uncharacterized •item 25 (Separation Authority) – AR [Army Regulation] 635-200, Para 15-4b, •item 26 (Separation Code) – JRB •item 27 (Reentry Code) – 4 •item 28 (Narrative Reason for Separation) – Admission of Homosexuality 12.The applicant's DA Form 2-1 (Personnel Qualification Record – Part ll) shows hisawards and decorations as the Expert Marksman Badge with Pistol and Hand Grenadebars and the Army Service Ribbon. 13.The Don't Ask Don't Tell (DADT) policy was implemented in 1993. This policybanned the military from investigating service members regarding their sexualorientation. Under the previous policy, service members may have been investigatedand administratively discharged if they made a statement that they were lesbian, gay, orbisexual; engaged in physical contact with someone of the same sex for the purposes ofsexual gratification; or married, or attempted to marry, someone of the same sex. 14.The DADT Repeal Act of 2010 was a landmark U.S. Federal statute enacted inDecember 2010 that established a process for ending the DADT policy, thus allowinggays, lesbians, and bisexuals to serve openly in the U.S. Armed Forces. It ended thepolicy in place since 1993 that allowed them to serve only if they kept their sexualorientation secret and the military did not learn of their sexual orientation. 15.The Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal ofSection 654 of Title 10, USC, provides policy guidance for Service Discharge ReviewBoards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members dischargedunder DADT or prior policies. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was warranted. The applicant’scontentions, the military record, and regulatory guidance were carefully considered. Onepossible outcome was to grant partial relief as the applicant’s request lacked specificityregarding that portion of the request referencing derogatory information. However, themajority of Board members determined the evidence presented sufficient to warrant arecommendation for relief. 2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :XXX :XXX GRANT FULL RELIEF :XXX : : 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 amending the applicant’s DD Form 214 for the period ending 21 May 2002 showing in: •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" Microsoft Office Signature Line... ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 11 April 1990, is missing the entry for his award of the Army Service Ribbon. Correction of this omission does not require Board action and as a result, amend the DD Form 214 by adding the Army Service Ribbon to item 13. REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel. a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 provides that a general discharge is a separation from the Armyunder honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c.Paragraph 15-4b, as then in effect, provided that homosexuality was incompatiblewith military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. d.Chapter 15 prescribes the current criteria and procedures for the investigation ofhomosexual personnel and their discharge from the Army. When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces. In all other cases, the type of discharge will reflect the character of the Soldier's service. 3.The Don't Ask, Don't Tell Repeal Act of 2010 established a process for ending theDADT policy (10 USC. 654), thus allowing gay, lesbian, and bisexual people to serveopenly 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. 4.The Under Secretary of Defense (Personnel and Readiness) memorandum, dated20 September 2011 (Subject: Correction of Military Records Following Repeal ofSection 654 of Title 10, USC), provides policy guidance for Service DRBs and ServiceBCM/NRs to follow when taking action on applications from former service membersdischarged under DADT or prior policies. a.The memorandum provides that effective 20 September 2011, Service DRBsshould normally grant requests, in these cases, to change the: •characterization of the discharge to honorable (if appropriate) •separation authority to "Army Regulation 635-200, paragraph 5-3" •narrative reason for discharge to "Secretarial Authority" •separation code to "JFF" •reentry (RE) code to an immediately-eligible-to-reenter category (RE-1) b.or the above corrections to be warranted, the memorandum states both of thefollowing conditions must have been met: •the original discharge was based solely on DADT or a similar policy in place priorto 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 evaluatedon 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 significantlybroader 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 was 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. 5.Army Regulation 600-37 (Unfavorable Information) policies regarding unfavorableinformation considered for inclusion in official personnel files. It provides for placement of unfavorable information about Army members in individual official personnel files ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files ensures that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. It also states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. //NOTHING FOLLOWS//