IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230005019 APPLICANT REQUESTS, in effect: * correction of his DD Form 214, Certificate of Release or Discharge from Active Duty, to show a more favorable reason for separation, based on the repeal of Don't Ask, Don't Tell (DADT) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * Legal Brief * Power of Attorney * Signature Certificate * Personal Statement * DD Form 214 * Honorable Discharge Certificate FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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’s counsel states, in effect, the Army administratively separated the applicant under DADT in August 2001 for making a homosexual admission. Although he received an honorable discharge, his DD Form 214 still bears stains from that bygone era. The applicant and counsel respectfully ask the Board to issue a new DD Form 214 in accordance with Under Secretary of Defense for Personnel and Readiness memorandum, 20 September 2011. 3. Counsel further provides, in effect, a summary of the applicant’s military history, post service achievements, and cites precedent established in similar ABCMR cases. In a personal letter to the Board, the applicant states, in effect, that he joined the military to serve his country and he has accomplished many things since being separated. He contends he was inappropriately discharged from the military. His record is void of misconduct warranting discharge. 4. A review of the record shows the applicant enlisted in the Regular Army on 18 January 2001. 5. A DA Form 4856, Developmental Counseling Form, 10 July 2001, shows the applicant received a performance counseling after he placed a letter on his commander’s desk which stated, "I am a homosexual." This document further shows the applicant was notified of his commander’s intent to initiate separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 15. 6. On 27 July 2001: a. The applicant was formally notified of his commander's intent to initiate separation actions against him under the provisions of AR 635-200, Chapter 15-3b, by reason of homosexuality. b. The applicant acknowledged receipt of the proposed separation notification. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. c. The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, Chapter 15, by reason of homosexuality. 7. The separation authority approved the recommended separation action on 2 August 2001, with an honorable characterization of service. 8. The applicant was discharged on 8 August 2001. His DD Form 214 shows he completed 5 months, and 21 days of net active service and contains the following entries in: * item 24, Character of Service – Honorable * item 25, Separation Authority – AR 635-200, Paragraph 15-3b * item 26, Separation Code – JRB * item 27, Reentry Code – RE-4 * item 28, Narrative Reason for Separation – Homosexual Admission 9. Under Secretary of Defense for Personnel and Readiness memorandum, 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. 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" 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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 determined the applicant admitted to his leadership his sexual orientation and his response influenced the discharge determination. With the circumstances discussed in this case, the Board agreed it is equitable to correct the applicant's separation authority, separation code, reentry code and narrative reason. Therefore, relief was granted. 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 :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 8 August 2001.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, United States 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 Army Board for Correction of Military Records 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 (AR) 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 "JRB" was the appropriate code to assign to Soldiers separated under the provisions of Chapter 15 of AR 635-200, Personnel Separations-Enlisted Personnel, 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. AR 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 15 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, 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 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, 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: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) 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 (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. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. Additionally, applicants may be represented by counsel at their own expense. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005019 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1