IN THE CASE OF:  
 
  BOARD DATE: 11 July 2023 
 
  DOCKET NUMBER: AR20230000319 
 
 
APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: 
 
• Item 26 (Separation Code) “JFF” (Secretarial Authority) 

• Item 27 (Reenlistment Code) “RE-1” 

• Item 28 (Narrative Reason for Separation) “Secretarial Authority” 

• Do not include any remarks that indicate the DD Form 214 was corrected 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Applicant Statement 

• DD Form 214 (Certificate of Release or Discharge from Active Duty) 


 
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 issue/condition related to the applicant’s request is Don’t Ask, Don’t Tell (DADT). The applicant states the above and that the Undersecretary of Defense Memorandum dated 28 January 2018 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. Her discharge is unjust because the sole reason for it was admission that she had engaged in homosexual activity and there were no aggravating factors alleged in her discharge paperwork. Further her record reflects high marks for her service. She has therefore met the requirement that the sole reason for her discharges was due to her homosexual act or admission. Even though she was discharged 41 years ago she recently learned she could apply for a records correction. Having “Homosexual Conduct” on her DD Form 214 has hurt her employment opportunities and prevented her from accessing veteran services. Having her discharge 
upgraded and narrative reason for discharge changed would lift these barriers in her life.  
 
3.  The applicant provided a statement in which she states it is in the interest of justice she requests that her application is considered.  
 
4.  The applicant enlisted in the Regular Army on 1 February 1980 for 3 years. Her military occupational specialty was 71N (Traffic Management Coordinator).   
 
5.  The applicant served in Germany from 28 June 1980 through 26 January 1983. 
  
6.  The applicant was formally counseled on 13 February 1981 for having engaged in homosexual acts in her barracks. She was advised that activities of this nature were not condone and were specifically prohibit by U.S. Army regulations. She would cease these activities immediately. Failure to do so would result in her being punished under the Uniform Code of Military Justice (UCMJ). She was referred to the Psychiatric clinic for a Mental Hygiene Exam and recommended that she be eliminated from service for unsuitability and granted a general discharge. The applicant did not make a statement. 
 
7.  The AF Form 3087 (Report of Psychiatric Evaluation), dated 26 February 1981, shows the applicant underwent a psychiatric evaluation and was diagnosed with avoidant personality disorder. The staff psychiatrist conculcated, in his opinion, the applicant was and is mentally responsible, able to distinguish right from wrong and adhere to the right and had the mental capacity to understand and participate in the proceedings. She had no mental disease or defect sufficient to warrant disposition through medical channels and she was poorly adapted to dealing with interpersonal stress. She had major problems in adjustment to military life and her potential for retention was poor and recommended her separation from service by administrative action due to incompatibility. 
 
8.  The applicant’s immediate commander notified her of his intent to initiate action to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 13-4d, by reason of unsuitability because of homosexual conduct. 
 
9. The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effects of a waiver of her rights. She did not submit a statement in her own behalf. 
 
10.  The adjutant’s statement pertaining to the psychiatrist statement shows the psychiatrist stated he did not check the applicant for homosexuality, but for a personality disorder and therefore could not make a statement other than what was said in AF Form 3087. 
11.  The applicant’s Record of Counseling dated 19 March 1981 shows Captain/CPT MD__ counseled her, regarding making a disturbance in the barracks as a result of drinking in excess. The applicant stated she was under a lot of pressure due to personal problems. She was advised of the policy on alcohol in the barracks and she was informed CPT MD__ was available if she wished to discuss any problems of a personal nature.  
 
     a.  As a result of a second incident in the barracks involving, the use of alcohol the applicant was given a Letter of Reprimand on 19 September 1980. 
 
     b.  A third incident resulted in her command referral to the Drug and Alcohol Abuse Counselors where she was followed to the present date. During early February 1981 the applicant confirmed to CPT MD__ that as a result of extreme personal problems she was experiencing a great deal of ambivalence in her sexual preferences. She was command referred to the Psychiatric clinic. The hospital and report of examination confirmed that she exhibited homosexual tendencies.  
 
     c.  In his opinion the applicant should be eliminated from the service and granted a general discharge. Her records should be coded with appropriate Reenlistment Code (RE Code) to prevent re-entry at a later date.  
 
12.  The Request for Elimination Action regarding the applicant dated 23 March 1981 was returned without further processing due to missing documentation. 
 
13.  DD Form 4187 (Personnel Action) dated 31 March 1981 shows the applicant requested she be paid Variable Housing Allowance because she had a civilian husband who resided in CA.  
 
14.  In her Sworn Statement dated 7 April 1981 the applicant states prior to her enlistment she engaged in homosexual activities. This information was withheld at the time of enlistment. Since she has been on active duty she has also been engaged in homosexual activities. These activities have continued during her assignment in Germany. 
 
15.  The separation authority approved the recommended separation action and directed the issuance of an Honorable discharge. 
 
16.  The applicant was discharged on 1 May 1981. Her DD Form 214 shows she completed 1 year, 3 months and 1 day of net active service and contains the following entries in: 
 
• item 24 (Character of Service)-Honorable 

• item 25 (Separation Authority)-PARA [paragraph] 13-4d, AR 635-200 


• item 26 (Separation Code)-JML 

• item 27 (Reenlistment Code)-RE-4 

• item 28 (Narrative Reason for Separation)-Unsuitability-Homosexuality  


 
17.  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. 
 
18.  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 U.S. 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. 
 
19.  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.  
 
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 discharge due to homosexuality. Her discharge was in compliance with applicable regulation at the time. However, in view of the repeal of DADT, and given that the Board found no mitigating factors such as misconduct related to the discharge, 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 
 
xx: xx: xx: 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 1 May 1981 showing in: 
 
• item 25 (Separation Authority):  Army Regulation 635-200, chapter 15  

• item 26 (Separation Code):  JFF 

• item 27 (Reentry Code):  1 

• item 28 (Narrative Reason for Separation):  Secretarial Authority 


 
  7/11/2023

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 635-5-1 (Separation Program Designator (SPD) Codes) 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. At the time, this regulation prescribed the separation code "JML" was the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry (RE) Code Cross Reference Table established RE code "4" as the proper RE code to assign Soldiers separated under this authority and for this reason. 
 
3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   
 
 a.  Paragraph 5–3 (Secretarial plenary authority) provides that: 
 
 (1)  Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.  
 
  (2)  Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers.  When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 
 
 b.  At the time, Chapter 13 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. 
 
4.  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. 
 
5.  The DADT Repeal Act of 2010 (Title 10, U.S. Code, 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 U.S. 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. 
 
6.  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 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 and 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. 
 
//NOTHING FOLLOWS//