IN THE CASE OF: 

		BOARD DATE:  5 December 2022

		DOCKET NUMBER: AR20220005640


APPLICANT REQUESTS:  In effect, an upgrade of his under other than honorable 
conditions (UOTHC) discharge to either an under honorable conditions (general) or an 
honorable discharge, under the provisions of the Don't Ask Don't Tell (DADT) policy.

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
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 he desires to have his discharge recharacterized as honorable, 
and that his record be corrected to permit him to obtain the benefits of having served in 
the Army, including without limitation all benefits available to Veterans who have been 
honorably discharged. He believes these corrections should be made because he was 
sexually abused by another male Soldier who was the driver for their commanding 
officer. Within days after the incident, he was called to the commander's office and told 
he had been observed engaging in sex with another male and given the choice to either 
resign from the Army or be subject to court-martial. Apparently, the offending Soldier 
orchestrated the meeting to ostracize him from the installation. Facing that dilemma, he 
agreed to resign, but when he received his discharge document, it showed he was 
discharged UOTHC. He lived with this injustice for many years, but recent legislation 
has provided him with an avenue to obtain the honorable discharge he deserves.

3.  On 8 May 1978, the applicant enlisted in the Regular Army for a period of 3 years. 
Upon completion of initial entry training, he was assigned to a unit at Fort Hood, Texas.

4.  The applicant accepted nonjudicial punishment (NJP) for violation of Article 86, of 
the Uniform Code of Military Justice (UCMJ) on 6 October 1978, for without authority, 
absenting himself from his organization and remaining so absent from on or about 
5 September 1978 to on or about 7 September 1978. His punishment consisted of 
forfeiture of $80.00 (suspended for 60 days) and extra duty for 14 days.

5.  The applicant accepted NJP for violation of Article 86, of the UCMJ on 26 May 1979, 
for without authority, failing to go at the time prescribed to his appointed place of duty on 
or about 15 May 1979. His punishment consisted of reduction from the rank/grade of 
private first class/E-3 to private (PV2)/E-2 (suspended for 30 days); forfeiture of $109.00 
pay per month for one month; and extra duty for 14 days. The suspended portion of the 
applicant's NJP was vacated on 11 June 1979.

6.  The applicant accepted NJP for violation of Article 86, of the UCMJ on or about 
21 June 1979, for without authority, absenting himself from his appointed place of duty 
for more than 12 hours on or about 21 June 1979. His punishment consisted of 
reduction from the rank/grade of PV2/E-2 to private (PV1)/E-1 (suspended for 90 days); 
forfeiture of $100.00 pay per month for one month; and extra duty for 21 days. 

7.  On 13 July 1979, a U.S. Army Criminal Investigation Command (CID) Report of 
Investigation (ROI) was forwarded to the applicant's chain of command to inform them 
the applicant was the subject of an investigation and to advise his immediate 
commander to take any administrative or disciplinary action deemed appropriate. In 
part, the ROI shows the applicant and another male Soldier engaged in numerous 
reciprocal acts of anal sodomy and the applicant performed acts of oral sodomy upon 
the other Soldier, acting as the active participant. The ROI includes sworn statements 
from both the applicant and the other Soldier wherein each confess to the charges as 
described above. The entire ROI and supporting documentation are available in their 
entirety for the Board's review.

8.  On 1 August 1979, the applicant underwent a command directed mental status 
evaluation and medical examination and was psychologically and medically cleared for 
any administrative action deemed appropriate by command.

9.  On 1 September 1979, the applicant's commander requested a bar to reenlistment 
be imposed upon the applicant. It was opined that his homosexuality and non-
dependability had made him a hinderance to his unit's mission. His lack of discretion 
concerning his homosexual activities had led to morale problems for the unit as well as 
himself. The bar was imposed on 13 September 1979.

10.  On 13 September 1979, the applicant's immediate commander notified the 
applicant of his intent to initiate actions to separate him under the provisions of Army 
Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14, by 
reason of misconduct based upon commission of homosexual acts during current term 
of service. 

11.  The applicant consulted with counsel and was advised of the basis for the 
contemplated actions to separate him, the rights available to him, and the effect of any 
action taken by him to waive his rights. He acknowledged he may encounter substantial 
prejudice in civilian life if he received a general discharge. He elected to waive his right 
to consideration of his case by an administrative separation board, consulting counsel, 
and to submit a statement in his own behalf.

12.  On 27 September 1979, the separation authority approved the recommendation 
and directed the applicant be reduced to the rank/grade of private (PV1)/E-1 and 
discharged with a service characterization of UOTHC.

13.  The applicant's DD Form 214 (Report of Separation from Active Duty) confirms he 
was discharged on 19 October 1979, under the provisions of Army Regulation 635-200, 
paragraph 14-33a(3). He was credited with 1 year, 4 months, and 22 days of net active 
service this period. His service was characterized as UOTHC. He was credited with 19 
days of lost time due to absence without leave. His awards and decorations include the 
Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Marksman 
Marksmanship Qualification Badge with Hand Grenade Bar.

14.  The available record is void of any evidence showing the applicant was a victim of 
either sexual harassment or sexual assault.

15. In response to a request from the Army Review Boards Agency (ARBA), Case 
Management Division (CMD), the U.S. Army CID provided two sanitized ROIs 
pertaining to the applicant on 18 August 2022. The CMD provided the ROIs to the 
applicant for his consideration and afforded him an opportunity to submit comments. 
The applicant's counsel provided a written response on 3 September 2022. The ROIs 
and the response are available in their entirety for the Board's consideration.

     a.  The ROI dated 7 May 1979 indicates the applicant reported some jewelry was 
stolen from him, but it was subsequently determined the larceny was unfounded and the 
applicant had made a false sworn statement. Counsel contends the applicant was never 
asked about the report, was never permitted to present for any investigation, and was 
never asked to give a statement. In other words, there was no due process. Rather, this 
was one of many events in which the applicant was defamed as a result of his sexual 
orientation, and efforts to discredit him and ostracize him.

     b.  The ROI dated 13 July 1979 shows the applicant and another male Soldier 
engaged in numerous reciprocal acts of anal sodomy and the applicant performed acts 
of oral sodomy upon the other Soldier, acting as the active participant. Counsel 
contends the applicant had never met the acting commander's driver prior to the 
incident when the applicant was sexually assaulted by him during a training exercise at 
Fort Irwin, California. A few days later, the applicant was summoned and falsely 
accused of sodomy. Within days of returning to Fort Hood, Texas, the applicant was 
summoned to the commanding officer's office. Also in the office was another Soldier 
whom the applicant had never met before. Both were told they were being accused of 
sodomy with each other. Further, each was told to choose to either make a statement of 
admission to the accusation using terms provided and be honorably discharged or face 
criminal prosecution under Texas law for sodomy and the prospect of being sentenced 
to prison upon conviction. Both chose the first option. However, upon discharge, the 
character of discharge was UOTHC. The character of his discharge was not only 
inappropriate but made without any due process or consideration to determine if the 
allegations had any support.

16.  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.

17.  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 United States 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.

18.  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 (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to 
follow when taking action on applications from former service members discharged 
under DADT or prior policies.

19.  Clemency guidance to the Service Boards for Correction of Military/Navy Records 
(BCM/NRs) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.

20.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.

BOARD DISCUSSION:

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. Based upon a change in DoD policy 
relating to homosexual conduct, the Board concluded that making the changes to the 
applicant's DD Form 214 was appropriate.

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 19 October 1979 showing in:

*	Item 9d (Authority and Reason) – Para 5-3 AR 635-200 SPD JFF 
*	Item 9e (Character of Service) – Honorable 
*	Item 9f (Type of Certificate Issued) – DD Form 256A
		  
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 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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
It states the ABCMR begins its consideration of each case with the presumption of 
administrative regularity. The ABCMR is not an investigative body and decides cases 
based on the evidence presented in the military records provided and the independent 
evidence submitted with the application.  

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel. 

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor 
and 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 states a general discharge is a separation from the Army under 
honorable conditions. When authorized, it is issued to a Soldier whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct. Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline). Action will be taken to separate a 
member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed. A discharge under other than honorable conditions is normally 
appropriate for a Soldier discharged under this chapter; however, the separation 
authority may direct a general discharge if merited by the Soldier’s overall record.

4.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), 
reasons for separating Soldiers from active duty, and the separation codes to be 
entered on the DD Form 214. It states that the separation code "JKQ" is the appropriate 
code to assign to Soldiers separated under the provisions of Army Regulation 635-200, 
Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE 
Code Cross Reference Table established that RE code "3" was the proper reentry code 
to assign to Soldiers separated under this authority and for this reason.

5.  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.

6.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at 
the time, prescribed the separation documents that must be prepared for Soldiers at the 
time of retirement, discharge, or release from active duty service or control of the Active 
Army. It established standardized policy for preparing and distributing the DD Form 214. 
The specific instructions for the following stated:

*	Block 24 (Character of Service) - characterization or description of service is 
determined by directives authorizing separation
*	Block 25 (Separation Authority) - obtain correct entry from regulatory or directives 
authorizing the separation
*	Block 26 (Separation Code) - enter the correct SPD representing the reason for 
separation (see Army Regulation 635-5-1)
*	Block 27 (RE Code) - enter reentry eligibility code (see Army Regulation 601-210 
(Personnel Procurement Qualifications and Procedures for Processing 
Applicants for Enlistment and Reenlistment in the Regular Army))
*	Block 28 (Narrative Reason for Separation) - enter the reason for separation as 
shown in Army Regulation 635-5-1 based on the regulatory or other authority

7.  The DADT Repeal Act of 2010 (Title 10, USC, Section 654) was a landmark United 
States 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 
United States 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.

8.  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, United States Code, 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.

9.  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 post-traumatic 
stress disorder; traumatic brain injury; sexual assault, or sexual harassment. Boards are 
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 
misconduct that led to the discharge.

10.  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)	 AR20220005640


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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