IN THE CASE OF: 
BOARD DATE: 9 February 2023 
DOCKET NUMBER: AR20220007368 


APPLICANT REQUESTS:  Reconsideration of his previous request for upgrade of his bad conduct discharge (BCD) to either an under honorable conditions (general) or an honorable discharge under 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.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20150002996 on 15 October 2015.

2.As a new argument, the applicant states he was targeted for his sexual orientationand his dreams and aspiration of becoming a Ranger and a successful career were tornfrom him. The alleged victim was afraid to admit his sexuality and decided to say that hewas drunk and did not know what was happening so he could avoid being discharged.The applicant served his entire 5-year sentence, the last three of which were spent insolitary confinement. He was also denied his right to appeal his case to a higher court.

3.On 15 April 2009, the applicant enlisted in the Regular Army for a period of 3 yearsand 16 weeks. Upon completion of training at Fort Benning, Georgia, he was assignedto a unit at Fort Bliss, Texas.

4.General Court-Martial (GCM) Order Number 11 issued by Headquarters, Fort Bliss,Fort Bliss, Texas, on 6 May 2011 shows the applicant was tried before a GCMarraigned at Fort Bliss, Texas. It shows:

a.He was found guilty of the following charges:

•engaging in sexual contact with another Soldier who was substantiallyincapacitated, on or about 23 August 2009

•furnishing alcohol to a minor under the age of 21, on or about 22 August 2009


•wrongfully using marijuana, between on or about 10 January 2010 and10 February 2010


b.The sentence was adjudged on 18 June 2010 and included discharge from theservice with a BCD, confinement for 5 years, forfeiture of all pay and allowances, and reduction to private/E-1. 

c.The sentence was approved and except for the part extending to the BCD, wasordered to be executed. The applicant was credited with 5 days of confinement against the approved sentence to confinement. 

d.He was confined at the Personnel Control Facility located at Fort Leavenworth,Kansas. 

5.GCM Order Number 23, issued by Headquarters, U.S. Army Fire Center ofExcellence and Fort Sill, Fort Sill, Oklahoma on 16 January 2014 shows the sentencehad been finally affirmed. The BCD was ordered to be duly executed.

6.The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)show he was discharged on 10 February 2014 in the rank/grade of private/E-1. He wascredited with completion of 1 year, 2 months, and 4 days of net active service thisperiod. His DD Form 214 shows in:

(1)Item 13 (Decorations, Medals, Badges, Citations and Campaign awarded orauthorized) shows he was awarded or authorized the: National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. 

(2)Item 18 (Remarks) - He did not complete his first full term of service.

(3)Item 24 (Character of Service) - His characterization of service was BadConduct. 

(4)Item 25 (Separation Authority) - The authority for his separation was ArmyRegulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3. 

(5)Item 26 (Separation Code) - His Separation Program Designator (SPD) Codewas "JJD." 

(6)Item 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4."

(7)Item 28 (Narrative Reason for Separation) - The narrative reason for hisseparation was "Court-Martial (Other)." 

(8)Item 29 (Dates of Time Lost During This Period) - He had lost time due toconfinement from 18 June 2010 until 10 February 2014. 

7.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, theauthority under which this Board acts, the ABCMR is not empowered to set aside aconviction. Rather, it is only empowered to change the severity of the sentence imposedin the court-martial process and then only if clemency is determined to beappropriate. Clemency is an act of mercy or instance of leniency to moderate theseverity of the punishment imposed.

8.The DADT policy was implemented in 1993. This policy banned the military frominvestigating service members regarding their sexual orientation. Under the previouspolicy, service members may have been investigated and administratively discharged ifthey made a statement that they were lesbian, gay or bisexual; engaged in physicalcontact with someone of the same sex for the purposes of sexual gratification; ormarried, or attempted to marry, someone of the same sex.

9.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 United States Armed Forces. Itended the policy in place since 1993 that allowed them to serve only if they kept theirsexual orientation secret and the military did not learn of their sexual orientation.

10.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 (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) tofollow when taking action on applications from former service members dischargedunder DADT or prior policies.

11.Published guidance to the BCM/NRs clearly indicates that the guidance is notintended to interfere or impede on the Board's statutory independence. The Board willdetermine the relative weight of the action that led to the discharge and whether itsupports relief or not. In reaching its determination, the Board shall consider theapplicant's petition, available records and/or submitted documents in support of thepetition.

BOARD DISCUSSION: 

The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found the applicant’s misconduct and the fact that his discharge was part of his court-martial sentence precludes any relief under guidance in place after the repeal of DADT. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:X :X :X DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150002996 on 15 October 2015. 

Microsoft Office Signature Line...
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, with respect to courts-martial and relatedadministrative records pertaining to court-martial cases tried or reviewed under theUniform Code of Military Justice (UCMJ), action to correct any military record of theSecretary's Department may extend only to actions taken by reviewing authorities underthe UCMJ or action on the sentence of a court-martial for purposes of clemency. TheSecretary of the Army shall make such corrections by acting through boards of civilianswithin the executive part of the Army.

2.Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMRis not empowered to set aside a conviction. Court-martial convictions stand as adjudgedor modified by appeal through the judicial process, it is only empowered to change theseverity of the sentence imposed in the court-martial process and then only if clemencyis determined to be appropriate. Clemency is an act of mercy or instance of leniency tomoderate the severity of the punishment imposed.

3.Army Regulation 15-185 prescribes the policies and procedures for correction ofmilitary records by the Secretary of the Army, acting through the ABCMR. prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the ABCMR. The regulation provides that the ABCMR begins itsconsideration of each case with the presumption of administrative regularity. Theapplicant has the burden of proving an error or injustice by a preponderance of theevidence. It is not an investigative body. The ABCMR may, in its discretion, hold ahearing. Applicants do not have a right to a hearing before the ABCMR. The Director orthe ABCMR may grant a formal hearing whenever justice requires.

4.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel.

a.An honorable discharge was separation with honor. Issuance of an honorabledischarge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 

b.A general discharge was a separation from the Army under honorable conditions.When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. 
 
     d.  A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed.  
 
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 (SPD Codes)) 

• 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 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. 
 
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, 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 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. 
 
     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 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//