IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007345 APPLICANT REQUESTS: a. correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 1981 to show in: * item 18 (Remarks) – no entry indicating his DD Form 214 was reissued * item 25 (Separation Authority) – Secretarial Authority * item 26 (Separation Code) – separation program designator (SPD) code JFF (Secretarial Authority) * item 27 (Reenlistment Code) – reenlistment eligibility (RE) code RE-1 b. a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 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 states his discharge is unjust because the sole reason for his separation was his admission that he had engaged in homosexual activity. There were no aggravating factors in his discharge paperwork. His current DD Form 214 states his "Character of Service" was honorable, which demonstrates no aggravating factors. He met the requirement for an upgraded service characterization because the sole reason for his discharge was due to an admission of homosexual acts. a. He requests the omission of any remarks that would indicate his DD Form 214 was corrected. The Under Secretary of Defense memorandum, 28 January 2011, states that "sexual orientation is a personal and private matter…" and remarks indicating that a correction was made may result in inquiries as to why. b. Even though he was discharged 41 years ago, he only recently learned that he could apply for a records correction. He knew there was a changed policy for active- duty personnel, but he did not know there was an appeal process for older veterans. Having his discharge upgraded and the narrative reason for his discharge changed would lift several barriers in his life. He has lived with the stigma of this for too long. The Board should grant his request in the interest of justice. 3. He enlisted in the Regular Army on 3 April 1980 for a period of 4 years. 4. On 30 October 1980, he received nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty, to wit: Russian Language Training, on or about 0800 hours, 21 October 1980. His punishment consisted of a reduction to pay grade E-1, forfeiture of $110 for 1 month, and extra duty and restriction for 14 days. 5. In his DA Form 2823 (Sworn Statement), 19 January 1981, he admitted to homosexual relations with a named Soldier and two unnamed Soldiers. He stated he made this statement because he and the Army cannot coexist, for he cannot hide his life in a hole as the military requires of a person like him. 6. The Request for Consultation from his commander, 20 January 1981, states the applicant admitted to being homosexual; the reason he came forward was because he wants to get out of the U.S. Army. He has been poorly motivated and displayed a poor attitude toward military discipline. He performs well in class; however, he is still very poor in his performance of military functions. He was repeatedly counseled, given extra training, and finally issued nonjudicial punishment under Article 15, Uniform Code of Military Justice. He has become more adamant about getting out of the Army. 7. His DA Form 3822-R (Report of Mental Status Evaluation), 3 February 1981, shows the examining physician assistant noted: * his behavior was normal * he was fully alert * he was fully oriented * his mood or affect was unremarkable * his thinking process was clear * his thought content was normal * his memory was good ? * he has the mental capacity to understand and participate in the proceedings * he was mentally responsible 8. The Silas B. Hays Army Hospital memorandum from the examining psychiatrist (Report of Evaluation), 3 March 1981, states: a. At the time of the applicant's evaluation there was no evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition. He was found to be capable of distinguishing right from wrong and of adhering to the right. He was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings. b. He believes the applicant is not amenable to any form of retraining or rehabilitation within the military service. He is not motivated for further military service. He is psychiatrically cleared for separation from the service under the provisions of the appropriate administrative regulation. 9. On 4 March 1981, he received nonjudicial punishment for wrongfully having an undetermined amount of marijuana in his possession on or about 1610 hours, 25 February 1981. His punishment consisted of reduction to the grade of private/E-1, forfeiture of 7 days of pay, and extra duty and restriction for 14 days. 10. The Defense Language Institute, Foreign Language Center memorandum (Separation under the Provisions of Paragraph 14-33a(3) (Other Misconduct – Homosexual Acts), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 4 March 1981, advised the applicant that he was being considered for elimination from the service for misconduct. 11. On 4 March 1981, he acknowledged receipt of his notification of elimination. In his statement, undated, he requested consideration of a general discharge, rather than a worse characterization. He announced his homosexuality for reasons of mental stress and, he now points out, his record is in a poor condition for those same reasons. He felt it is unjust that his life be damaged more than necessary by an unfavorable discharge all because his psyche is not suited to military servitude. 12. On 13 March 1981, the commanding general directed the applicant's discharge under the provisions Army Regulation 635-200, paragraph 14-33a(3), with assignment of SPD code JKC (Homosexuality) and issuance of a Discharge Certificate under Other Than Honorable Conditions. 13. He was discharged from the Regular Army on 31 March 1981. His DD Form 214 issued at the time of his separation showed in: * item 4a (Grade, Rate, or Rank) – Private 1 * item 4b (Pay Grade) – E-1 * item 12c (Net Active Service This Period) – 11 months and 29 days * item 24 (Character of Service) – Under Other Than Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, Chapter 14 (Separation for Misconduct) * item 26 (Separation Code) – JKC (Misconduct – Homosexual Acts; Moral or Professional Dereliction (Includes Homosexual Acts)) * item 27 (Reenlistment Code) – RE-4 * item 28 (Narrative Reason for Separation) – Misconduct – Homosexual Acts; Moral or Professional Dereliction (Includes Homosexual Acts) 14. On 25 February 1982, the Army Discharge Review Board determined the applicant's discharge was proper but not equitable. The equity decision was based on changes in Army Regulation 635-200 with the addition of chapter 15, which would provide the applicant with an honorable discharge. Specifically, the board noted the applicant's self-admission of homosexual acts could not be completely identified as misconduct under the seven categories is Army Regulation 635-200, paragraph 15-5. The board also noted the applicant's command failed to take the necessary investigative action to prove the applicant's actions were such to prejudice good order, law, and discipline. Accordingly, the board voted to grant full relief in the form of an honorable discharge. 15. He was issued a new DD Form 214, showing in: * item 4a (Grade, Rate, or Rank) – Private * item 4b (Pay Grade) – E-1 * item 18 (Remarks) – Discharge Upgraded on 25 February 1982 Following Application of 10 July 1981 * item 24 (Character of Service) – Honorable * item 25 (Separation Authority) – Army Regulation 635-200, Paragraph 14-33a(3) * item 26 (Separation Code) – JKC (Misconduct – Homosexual Acts; Moral or Professional Dereliction (Includes Homosexual Acts)) * item 27 (Reenlistment Code) – RE-4 * item 28 (Narrative Reason for Separation) – Misconduct – Homosexual Acts; Moral or Professional Dereliction (Includes Homosexual Acts) BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that partial 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 agreed in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant partial relief. The applicant was serving until he was separated after engaging/attempting to engage in or solicit to engage in homosexual acts. With the circumstances discussed in this case, the Board agreed it is equitable and just to correct the applicant’s separation code and narrative reason. However, the Board determined the applicant received an article 15 for possession of marijuana prior to his discharge. Based on the preponderance of evidence, the Board determined the applicant’s RE Code did not merit change to Re Code 1. Therefore, the Board granted partial relief. 2. 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. 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 by issuing the applicant a DD Form 214 for the period ending 31 March 1981 by removing in item 18 (Remarks) – the entry indicating his DD Form 214 was reissued and showing in: • item 26 (Separation Code): JFF • 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 changing the applicant’s RE Code (Reenlistment Code) in item 27– to reflect reenlistment eligibility (RE) code RE-1 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribed basic eligibility for prior-service applicants for enlistment and included a table of U.S. Army RE codes. * RE-1 applied to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criterial are met * RE-4 applied to persons separated from the last period of service with a nonwaivable disqualification 4. Army Regulation 635-5-1 (Separation Program Designators), 1 October 1979, listed the specific authorities (regulatory, statutory, or other directives) and reasons for separation of members from active military service. The SPD code is used in statistical accounting to provide the reason for separation. * JKC – Misconduct – Homosexual Acts; Moral rr Professional Dereliction (Includes Homosexual Acts) * JFF – Determination of Service Secretary 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 1 June 1980, provided the authority and general provisions governing the separation of enlisted personnel prior to expiration term of service to meet the needs of the service and its members. The regulation also provided the criteria governing the issuance of Honorable, General, and Under Other Than Honorable Conditions Discharge Certificates. a. Chapter 14 (Separation for Misconduct) stated this chapter established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. b. Paragraph 14-33 (Other Misconduct) stated members are subject to separation under the provisions of this section for the following, to include homosexual acts. Homosexual acts are bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act. Members who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication normally will not be processed for discharge because of homosexual acts. However, if other conduct is involved, members may be considered for discharge for other reasons set forth in this regulation. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 1 June 1982, provided the authority and general provisions governing the separation of enlisted personnel prior to expiration term of service to meet the needs of the service and its members. This regulation also provided the criteria governing the issuance of Honorable, General, and Under Other Than Honorable Conditions Discharge Certificates. a. Chapter 15 (Separation for Homosexuality) established policy and provided procedures and guidance for separation of enlisted personnel by reason of homosexuality. b. Paragraph 15-5 (Type of Discharge) stated a discharge under other than honorable conditions may be issued in accordance with guidance on misconduct, if there is finding that the member attempted, solicited, or committed a homosexual act during the current term of service: (1) by using force, coercion, or intimidation; (2) with a person under 16 years of age; (3) with a subordinate in circumstances that violate customary military superior- subordinate relationships; (4) openly in public view; (5) for compensation; (6) aboard a military vessel or aircraft; or (7) in another location subject to military control pursuant to a finding that 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 members of the Armed Forces under circumstances in which privacy cannot reasonably be expected. c. Paragraph 15-5b stated the type of discharge will reflect the character of the member's service in all other cases. 7. The Under Secretary of Defense for Personnel and Readiness memorandum (Correction of Military Records Following Repeal of Title 10, U.S. Code, Section 654 (Policy Concerning Homosexuality in the Armed Forces)), 10 September 2011, 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 Don't Ask, Don't Tell (DADT) or prior policies. 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 to "JFF [Secretarial Authority]" * character of service to "Honorable" * RE code to an immediately-eligible-to-reenter category 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 * there were no aggravating factors in the record, such as misconduct c. Although each request must be evaluated on a case-by-case basis, 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 Department of Defense 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007345 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1