IN THE CASE OF: 

		BOARD DATE: 15 November 2023

		DOCKET NUMBER: AR20230004732


APPLICANT REQUESTS:  in effect, 

*	correction of his DD Form 214 (Certificate of Release or Discharge from Active 
Duty), ending on 7 September 2000, to reflect he was discharged at the 
convenience of the government and on active duty over 181-days
*	a personal appearance before the Board via video or telephonic

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214, ending on 7 September 2000

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code 
(USC), 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 in effect, he was discharged from active duty due to his sexual 
orientation, he requests correction of his DD Form 214 to reflect he was discharged for 
the convenience of the government and reflect he was on active duty for over 181-days.

3.  The board will not consider the applicant's request for correction of his DD Form 214 
to reflect he was on active duty for over 181-days. His DD Form 214 shows that he was 
on active duty for 1-year, 5-months, and 20-days.

4.  A review of the applicant's service record shows:

	a.  On 12 February 1999, the applicant enlisted in the U.S. Army Reserve (USAR) 
Delayed Entry Program (DEP). He was discharged from the USAR DEP and enlisted in 
the Regular Army on 18 March 1999.

	b.  On 9 June 2000, the applicant was diagnosed with mood disorder and was 
referred to the unit chaplain. The opinion of the mental health professional was the 
applicant was not motivated to remain in the service and he had received significant 
mental health treatment when he was 16 through 18-years of age. The mental health 
professional recommends the applicant be discharged from active duty under Chapter 
13. 

	c.  On 6 July 2000, the applicant accepted non-judicial punishment under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ), for five specifications 
of failure to report to his appointed place of duty. His punishment included reduction 
suspended unless vacated before 1 January 2001; extra duty and restriction.

	d.  On 14 July 2000, the applicant accepted non-judicial punishment under the 
provisions of Article 15, UCMJ, for failure to report to his appointed place of duty. His 
punishment included reduction, extra duty and restriction to be suspended if not vacated 
before 14 August 2000. The reduction in grade was vacated on 12 July 2000.

	e.  On 14 July 2000, the applicant was counseled as an informal inquiry regarding 
his claim the applicant made in a sworn statement that he was bisexual which is a 
violation of the "Do Not Ask, Do Not Tell" policy. 

	f.  The applicant's commander-initiated separation action against him under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), chapter 15 (Separation for Homosexuality) with the recommendation the 
applicant receive an honorable discharge. The memorandum was not dated. 

	g.  On 26 July 2000, the applicant acknowledged the notification of separation. 

	h.  On 1 August 2000, the applicant's commander recommended he be separated 
under the provisions of AR 635-200, chapter 15 because he made the statement that he 
was bisexual. 

	i.  On 2 August 2000, after consultation with counsel, the applicant acknowledged 
that he waived consideration by an administrative separation board, personal 
appearance and did not make statements in his own behalf. He understood that if he 
received a discharge less than honorable, he:

*	may encounter substantial prejudice in civilian life
*	may be ineligible for many or all benefits as a veteran under both Federal and 
State laws
*	may apply to the Army Discharge Review Board or the Army Board for 
Corrections of Military Records to request an upgrade
*	consideration by either board does not imply it will be upgraded
	j.  On 18 August 2000, the applicant's intermediate commander recommended the 
separation be approved and he receive an honorable discharge.

	k.  The legal review found the separation packet met the requirements for the 
separation.

	l.  On 23 August 2000, the separation authority approved the applicant to be 
separated from active duty under the provisions of AR 635-200, chapter 15 and receive 
an honorable characterization of service.

	m.  The applicant was honorably discharged from active duty on 7 September 2000.  
DD Form 214 shows the applicant completed 1-year, 5-months, and 20-days of active 
service. It also shows in items:

*	25 (Separation Authority): AR 635-200, paragraph 15-3b
*	26 (Separation Code): JRB
*	27 (Reentry Code) 4
*	28 (Narrative Reason for Separation): Homosexual Admission


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 narrative reason for separation. The Board agreed that the 
applicant's reentry code is warranted as there was a period of misconduct during his 
military service. However, with the circumstances discussed in this case, the Board 
agreed it is equitable to correct the applicant's 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 4 October 1999 showing in: 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.

ADMINISTRATIVE NOTE(S):  NA


REFERENCES:

1.  Title 10, USC, 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.  AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, sets 
policies, standards, and procedures to ensure the readiness and competency of the 
force while providing for the orderly administrative separation of enlisted members for a 
variety of reasons. Readiness is promoted by maintaining high standards of conduct 
and performance. 

	a.  Paragraph 5-3 (Secretarial Authority), the separation of enlisted personnel for the 
convenience of the Government is the prerogative of the Secretary of the Army (SA). 
Except as delegated by this regulation or by special Department of the Army directives, 
it will be accomplished only by the SA's authority. The separation of any enlisted 
member of the Army under this authority will be based on an SA determination that 
separation is in the best interests of the Army.

	b.  Chapter 15 (Separation for Homosexuality), homosexuality is incompatible with 
military service. Military members who engage in homosexual conduct or who, by their 
statements, demonstrate a tendency to engage in homosexual conduct, seriously impair 
the accomplishment of the military mission. The presence of such members adversely 
affects the ability of the armed forces to maintain discipline, good order, and morale; to 
foster mutual trust and confidence among members; to insure the integrity of the system 
of rank and command; to facilitate assignment and worldwide deployment of members 
who frequently must live and work under close conditions affording minimal privacy; to 
recruit and retain members of the armed forces; to maintain the public acceptability of 
military service; and to prevent breaches of security. 

	c.  Paragraph 15-2, for the purpose of this chapter the following apply:  

*	Homosexual means a person, regardless of sex, who engages in, desires to 
engage in, or intends to engage in homosexual acts 
*	bisexual means a person who engages in, desires to engage in, or intends to 
engage in homosexual and heterosexual acts 
*	homosexual act means bodily contact, Actively undertaken or passively 
permitted, between members of the same sex for sexual satisfaction 

	d.  Paragraph 15-3b, the member has stated that he or she is a homosexual or 
bisexual, unless there is a further finding that the member is not a homosexual or 
bisexual.

	e.  Paragraph 15-4, characterization of service, a. When the sole basis for 
separation is homosexuality, a discharge under other than honorable conditions may be 
issued only if such characterization is warranted and if there is a finding that during the 
current term of service the member attempted, solicited, or committed a homosexual 
act. 

3.  AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), in 
effect at the time, lists the specific authorities (regulatory, statutory, or other directives) 
and reasons for separation of members from active military service. SPD and Authority 
Governing Separations states that Determination of service secretary – SPD of JFF, 
LFF, MFF or KFF

4.  On 20 September 2011, the Under Secretary of Defense memorandum stated 
Pursuant to the Don't Ask, Don't Tell Repeal Act of 2010, the President, the Secretary of 
Defense, and the Chairman of the Joint Chiefs of Staff have certified that the 
Department of Defense is prepared for the repeal of section 654 of Title 10, USC, 
commonly referred to as Don't Ask, Don't Tell (DADT). Repeal will take effect on 
20 September 2011. Upon repeal, some former Service members discharged under 
DADT or prior policies may request a correction of their military records from either their 
Service Discharge Review Board (DRB) or their Service Board for Correction of 
Military/Naval Records (BCM/NR). To help ensure consistency across the Services and 
to address what may be a large number of similar applications arising from the repeal of 
DADT, this memorandum provides supplemental policy guidance for DRB and BCM/NR 
action on such applications. As an initial matter, the repeal of DADT will be considered a 
sufficient basis to support reconsideration of such requests for applicants who have 
previously filed with either their Service DRB or BCM/NR.  

Effective 20 September 2011, Service DRBs should normally grant requests to change 
the narrative reason for a discharge (the change should be to "Secretarial Authority" 
(Separation Program Designator Code (SPD) code JFF)), requests to re-characterize 
the discharge to honorable, and/or requests to change the reentry code to an 
immediately-eligible-to-reenter category (the new RE code should be RE code 1J) when 
both of the following conditions are 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. 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. 

5.  AR 15-185 (ABMCR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in 
its discretion, hold a hearing or request additional evidence or opinions. Additionally, it 
states in paragraph 2-11 that 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.


//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004732


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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