IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007865 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 27 April 2022 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 he was discharged due to his sexual orientation. He did not do anything wrong. His separation was involuntary. He was unaware that he could request an upgrade to his discharge. 3. On 3 January 1967, the applicant was inducted into the Army of the United States. 4. On 18 January 1967, he was examined by the Mental Hygiene Consultation Service. He was referred by his commanding officer for psychiatric evaluation prior to possible separation under Army Regulation (AR) 635-89 (Personnel Separations - Homosexuals). During the examination, he admitted he began to engage in homosexual acts prior to his induction. 5. On 21 January 1967, the applicant's unit commander recommended that he be discharged from military service under the provisions of AR 635-89 (Personnel Separations - Homosexuals) with issuance of a General Discharge. The unit commander cited the psychiatric evaluation as the reasons for the elimination action. The applicant was identified as a Class III homosexual. 6. The applicant was notified of the proposed separation action under the provisions of AR 635-89 for homosexuality. He elected to waive consideration of his case by a board of officers. He elected to waive a personal appearance before a board of officers. Statement on his own behalf were not submitted. He waived representation by counsel. He acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He further understood that as the result of an issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect substantial prejudice in civilian life. 7. On 1 February 1967, the appropriate authority approved the recommendation and directed that he be furnished a general discharge. 8. On 3 February 1967, an Ord Form 700 (Conduct and Efficiency Ratings) show, in part, that the applicant received an excellent conduct rating. 9. The applicant was discharged from active duty on 11 August 1982. His DD Form 214 shows he was discharged under the provisions of AR 635-89 (Personnel Separations – Homosexuals), 4th Combat U.S. Army Training Center and Fort Ord, CA, dated 1 February 1967 SPN (Separation Program Number) 257, with the issuance of a Under Honorable Conditions Discharge Certificate. His DD Form 214 shows he completed 1 month and 4 days of net active service this period. 10. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 11. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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. The evidence of record shows the applicant was discharged from active duty on 11 August 1982. His DD Form 214 shows he was discharged under the provisions of AR 635-89 due to Homosexuality, SPN (Separation Program Number) 257, with the issuance of an under honorable conditions discharge. Although the applicant only completed 1 month and 4 days and was not awarded an MOS, there is no misconduct in his records and except for the homosexual discharge, it is likely he would have successfully continued training. Based upon a change in DoD policy relating to homosexual conduct, the Board determined an injustice occurred and 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 11 August 1982, showing in: * item 24 (Characterization of Service): Honorable * 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 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 635-89, in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts. Individuals involved in isolated episodes stemming solely from immaturity, curiosity, or intoxication were excluded, but were to be eliminated under other regulations if appropriate. a. Cases involving the violation of the rights of others such as those involving the use of force, abuse of rank or position, and those involving minors below the age of consent were designated as Class I. b. Those of a purely consensual nature and Class I cases which either were not referred to trial by court-martial or were tried but did not result in a punitive discharge were designated as Class II. c. Class III applied to individuals who had committed only pre-service homosexual acts. An undesirable discharge was normally considered appropriate for Class II cases. d. The regulation permitted both officers and enlisted personnel to resign for the good of the service, but such resignations were considered to be under other than honorable conditions and undesirable discharges were issued. A general or honorable discharge could be issued in those cases in which the individual had disclosed homosexual tendencies upon entering the service, to individuals who had performed outstanding or heroic service, or if an individual had served for an extended period of time and the separation authority determined that such action was in the best interests of the service. In determining the characterization of the service, due regard was to be given to the particular circumstances which required the separation. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. a. 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. Army Regulation 635-200, paragraph 3-7b, provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 4. The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be 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. 5. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, 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. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the Reentry Eligibility code to an immediately-eligible-to-reenter category 6. 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 7. The memorandum further states that 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. 8. The memorandum also recognized that 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, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those 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) AR20220007865 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1