IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007900 APPLICANT REQUESTS: in effect, correction of Block 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 June 2002, by removing the current entry. 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 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, it was a difficult time in his life. He just returned from a 1-year deployment in Central America where he experienced a great many things. He reported having issues to his command and instead of sending him to medical to be checked out, he was chaptered out of the military. He has spent a lot of years overcoming the challenges the deployment presented. He was hard charging and served honorably, he is ready to close the final chapter and have his DD Form 214 corrected. 3. Having 7 months and 4 days of prior active service, the applicant enlisted in the Regular Army on 8 October 1997. He held military occupational specialist 68F (Aircraft Electrician). 4. On 18 April 2002, he submitted a DA Form 2823 (Sworn Statement), stating he was developing homosexual tendencies incompatible with continued military service. 5. On 18 April 2002, a separation physical was conducted. He was found qualified for separation under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 6. On 26 April 2002, his commander notified him of his intent to separate him from the Army prior to expiration of his current term of service in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, paragraph 15-3b, for homosexuality. The specific reason for the proposed action was the applicant made a statement that he was a homosexual. His immediate commander recommended that he receive an honorable discharge. The applicant acknowledged receipt of the foregoing on 26 April 2002. 7. On 29 April 2002, the applicant having been afforded the opportunity to consult with appointed counsel of the basis for the contemplated action to separate him for homosexuality under AR 635-200, Chapter 15, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood that he was entitled to have his case considered by an administrative separation board. He was advised of his right to submit a conditional waiver of his rights to have his case considered by an administrative separation board. He waived consideration of his case by an administrative separation board if his service is characterized no less favorable than honorable. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued. Statements in his own behalf were not submitted. 8. On 1 May 2002, his intermediate commander recommended approval and that he receives an honorable discharge. 9. On 3 May 2002, the separation authority approved his separation from the Army prior to expiration of his current term of service in accordance with AR 635-200, paragraph 15-3b, for homosexual admission. He directed he receive an honorable characterization of service. 10. The applicant was honorably discharged on 4 June 2002. His DD Form 214 shows he was discharged in accordance with AR 635-200, paragraph 15-3b, for homosexual admission. His DD Form 214 shows he completed 4 years, 7 months, and 27 days net active service this period. His DD Form 214 also shows: Item 26 (Separation Code): "JRB", Item 27 (Reentry Code) "4", and Item 28 (narrative reason for separation): "Homosexual Admission." 11. The applicant's military record does not contain any record of misconduct. 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 after he made a statement that he was a homosexual. He was honorably discharged on 4 June 2002 for homosexual admission, after completing 4 years, 7 months, and 27 days of active service this period. He was assigned Separation Code JRB and Reentry Code 4 with a narrative reason for separation "Homosexual Admission." There is no misconduct in his records and except for the homosexual discharge, it is likely he would have successfully continued his military service. 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 4 June 1992, showing in: * 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 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The SPD code of "JRB" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Homosexual Admission." Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 4. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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 5-3 establishes policy and prescribes procedures for separating members under Secretarial plenary authority. Separation under this paragraph is the prerogative of the Secretary of the Army. c. Paragraph 5-3 (Criteria for discharge), subparagraph (b), states the Soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he/she is not a person who engages in attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. (1) A statement by the Soldier that he/she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the Soldier engages in attempts to engage in has a propensity to engage in or intends to engage in homosexual acts. (2) The Soldier will be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. The Soldier bears the burden of rebutting the presumption. In determining whether a Soldier has successfully rebutted the presumption, some or all of the following may, be considered. * Whether the Soldier has engaged in homosexual acts. * The Soldier's credibility. * Testimony from others about the Soldier's past conduct, character, and credibility. * The nature and circumstances of the Soldier's statement. * Any other evidence relevant to whether the member is likely to engage in homosexual acts. 5. 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, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under Don't Ask Don't Tell (DADT) or prior policies. a. The memorandum states that effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * SPD code to "JFF" * character of service to "HONORABLE" * RE code to an immediately-eligible-to-reenter category (RE-1) b. For the above corrections or amendments 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. 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. d. The memorandum also recognized that although BCM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, 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 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. 6. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214. a. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. b. Item 18 (Remarks) - when a DD Form 214 is administratively issued or reissued, enter "DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date)." However, do not make this entry if the appellate authority, Executive Order, or Headquarters, Department of the Army, directs otherwise. c. The Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)), Army Review Boards Agency (ARBA), is authorized to issue or reissue DD Forms 214. Once a DD Form 214 has been issued, at the direction of the ABCMR or in other instances when appropriate, including when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007900 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1