IN THE CASE OF: BOARD DATE: 15 June 2021 DOCKET NUMBER: AR20200002323 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, based on the repeal of Don't Ask, Don't Tell (DADT). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 6 January 2020 FACTS: 1. The applicant did not file within the three 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 his request is under the current standards of the DADT repeal. 3. The applicant enlisted in the Regular Army on 11 September 1986. 4. A U.S. Army Criminal Investigation Command (CID) Report of Investigation, dated 6 April 1988, shows the applicant was accused of soliciting another Soldier to commit an offense (sodomy). 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 April 1988, states the applicant was evaluated based on the CID investigation. There was no clinical evidence to suggest the presence of any mental disorder. 6. The applicant's immediate commander notified the applicant on 19 April 1988 that he was initiating actions to separate the applicant under the provisions of Army Regulation 635-200, (Personnel Separations - Enlisted Personnel), paragraph 15-3a, based on homosexual conduct. The applicant acknowledged the proposed separation notification on the same date. 7. The applicant’s immediate commander formally recommended the applicant's separation from service on 19 April 1988, under the provisions of Army Regulation 635-200, paragraph 15-3a, based on homosexual conduct. 8. The applicant consulted with legal counsel on 20 April 1988 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. He elected not to submit a statement in his own behalf. 9. The separation authority approved the recommended action and the issuance of an under honorable conditions (general) discharge. 10. The applicant was discharged on 16 May 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the following entries in: * item 24 (Character of Service) – Under Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 15-3a * item 26 (Separation Code) – JRA * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – Engaged in Homosexual Act(s) 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 13 March 1989. 12. 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. 13. 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. 14. 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 (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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the current narrative reason entered on the applicant’s DD Form 214 and a change in DoD policy related to homosexual conduct in the military, the Board concluded there was an injustice present which warranted correction. As a result, the Board recommended changing the Separation Authority to AR 635-200, the Separation Code to JFF, the Reenlistment Code to 1, and the Narrative Reason for Separation to Secretarial Authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :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 reissuing the DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of service ending 16 May 1988 with the following amendments: • item 24 to "Honorable" • item 25 to "Army Regulation 635-200 • item 26 to "JFF" • item 27 to "1" • item 28 to "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): Not Applicable REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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. 4. 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. 5. 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 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 * 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// ABCMR Record of Proceedings (cont) AR20200002323 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002323 1 ABCMR Record of Proceedings (cont) AR20200002323 1