IN THE CASE OF: BOARD DATE: 18 May 2021 DOCKET NUMBER: AR20200007796 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 June 1996, to change: * her uncharacterized discharge to an honorable discharge; * her reentry (RE) code from "4" to an unspecified, presumably more favorable code * her narrative reason for separation to an unspecified, presumably more favorable narrative reason 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 19 May 2020 * Memorandum Appealing the Administrative Separation Board’s decision, dated 6 June 1996 * Separation Authority Approval for Chapter 15, dated 6 June 1996 * DD Form 214, for the period ending 6 June 1996 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 7 June 1996 * Discharge Documents Transmittal Form, dated 18 February 1998 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 in effect, she served during the "Don't Ask, Don't Tell" era. She was falsely accused of acts that were not factual; she finished basic training and was in advance individual training (AIT) and was discharged at the end of the training on graduation day. She did not participate in any inappropriate acts with any other Soldier. Another Soldier made advances towards her and when she turned these advances down, the Soldier spitefully filed actions against her. She has been trying to get into law enforcement for over 20 years but her discharge causes problems. She finished her forensics degree on 1 July 1996 and would like to work for a government agency. 3. The applicant enlisted in the Maryland Army National Guard (MDARNG) on 28 August 1995. She was ordered to active duty for training (ADT) on 18 January 1996, for purpose of completing her initial entry training. 4. A review of the applicant's record failed to show any derogatory actions taken against her. 5. The applicant's commander notified her on 22 May 1996 that he was initiating actions to separate her from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15, by reason of homosexual acts, due to the findings of an Army Regulation 15-6 investigation. 6. The applicant consulted with counsel on 22 May 1996 and acknowledged receipt of the proposed separation memorandum. She requested counsel, consideration of her case by an administrative separation board, a personal appearance before the board, and elected to not submit a statement in her own behalf. 7. The applicant’s commander formally recommended her discharge under the provisions of Army Regulation 635-200, Chapter 15, by reason of her participation in homosexual acts. He recommended she receive an uncharacterized discharge. 8. The Fort McClellan Staff Judge Advocate’s Office reviewed her separation packet on 24 May 1996 and found it legally sufficient. 9. The applicant’s brigade commander subsequently recommended that she be separated under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexuality. He also stated "her presence in the unit adversely affected the unit’s ability to maintain good order, discipline and morale" and after considering all matters presented to include her duty performance during this period and her entry level status, he recommended an entry level separation with service uncharacterized. 10. The separation authority referred the applicant’s case to an administrative separation board on 28 May 1996, to consider whether she should be discharged under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexuality. The separation board found that by a preponderance of evidence, the applicant: * did engage in a homosexual act or acts * did attempt to engage in a homosexual act or acts * did solicit another person to engage in a homosexual act or acts * the homosexual acts engaged in, attempted or solicited by the applicant; was not a departure from the Soldier's usual and customary behavior; was under all circumstances, likely to recur; and were not accomplished by the use of force, coercion, or intimidation * the Soldier's continued presence in the Army was not consistent with the interest of the Army in maintaining proper discipline, good order, morale * the Soldier had a propensity or intent to engage in homosexual acts * the applicant has made a statement that she is a homosexual or bisexual, or words to that effect. * if a statement was made, the applicant had not rebutted the presumption that she is a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts * the board recommended the applicant be separated with an Entry Level Separation 11. The Fort McClellan Staff Judge Advocate’s Office provided a post board legal review on 5 June 1996, found the board proceedings legally sufficient, and recommended approval of the board’s findings and recommendation. 12. The applicant submitted an appeal to the board’s decision on 6 June 1996, wherein she stated the following: On 1 June 1996, an administrative separation board convened by you recommended that I be separated from military service UP AR 635-200, chapter 15. I respectfully request that you disapprove the recommendations of the board and allow me to stay graduate from the military police (MP) course and return to my National Guard unit. I admitted to the board that I had a prior homosexual relationship. It was something I was not proud of and hoped never to repeat. I divulged the information to a person I thought was a trusted friend only because I wanted to get it off my conscious. I did not think the admission would be a violation of the Army's policy. The friend and I were discussing some of the rumors going around about me because I had very short hair and I tend to be very assertive, and when she asked me if I was gay, I admitted that I had that kind of relationship in the past, but broke away and never wanted to go back. That admission seemed to be the third strike against me: people thought I "looked" like a man because of my hair; they thought I "acted" like a man because of my aggressive nature; and when I told my friend that I had once liked women, like a man, I was tagged as a lesbian, whether that was my way or not, and nothing I could do could overcome that impression. This has all been blown way out of proportion. I had some close female friends during training. The vast majority of the women in the bay testified that we were acting like close friends. But a select few thought, because of my three strikes, that something else must be going on, and wrongfully accused me and those I chose to call friends. The Recorder even argued to the panel that because I had been involved in a same-sex relationship that I should always be suspected every time I had a female friend. That kind of attitude is very discriminatory. I want to change. I tried to change. Now the Army is trying to refuse me the right to change. It’s just not fair. It is especially unfair in that two other females in the bay were caught taking a long shower together. One of the privates in the bay testified that she waited outside the shower, timing them, and they were in almost 20 minutes together. These same two women had previously been caught in bed together by a Drill Sergeant. I did nothing even remotely similar to that, yet they were retained and allowed to graduate, and I get kicked out. Even the board president, , noted the unfairness of the situation. I have been told that I will be separated today, which seems to indicate to me that the decision has already been made against me. My attorney has told me that you are a fair man, and will read and consider my appeal. I can't add much to what was said in the board, only that I give you my word that I am not a lesbian, that I am ashamed of my past life and want to put it behind me, that my greatest desire is to serve my country through the National Guard as a member of the Military Police, and that I will not become involved in sex or sexual relationships with other women, either through the military or in my civilian life. I know this isn't a lot to offer against the recommendation of the board, but my word, my integrity, is important to me. It’s all I have to give you. 13. The separation authority approved the board’s findings and ordered the applicant’s discharge on 6 June 1996, under the provisions of Army Regulation 635-200, Chapter 15, for homosexuality. He directed she receive an entry level separation, with uncharacterized service, and that she be returned to the control of the MDARNG. 14. The applicant was discharged on 6 June 1996. The DD Form 214, she was issued shows; she was discharged under the provisions of Army Regulation 635-200, Chapter 15; she was credited with completing four months and 29 days of total active service; she was not awarded a military occupational specialty (MOS); and her service was uncharacterized. The DD Form 214 further shows the following: * Item 24 (Character of Service) – Uncharacterized * Item 25 (Separation Authority) – AR 635-200, PARA 15-3A * Item 26 (Separation Code) – JRA * Item 27 (Reenlistment Code) – 4 * Item 28 (Narrative Reason for Separation) – Homosexual Act 15. The applicant was discharged from the MDARNG on 7 June 1996. 16. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. Reserve Component (RC) Soldiers who complete active duty resulting in the award of an MOS, even when the active duty period is less than 90 days (for example, completion of the advanced individual training component of ARNG of the U.S. (ARNGUS) Alternate Training Program or U.S. Army Reserve (USAR) Split Training Program), will receive a character of service of honorable unless directed otherwise by the separation approval authority. The available evidence shows the applicant was in an entry-level status at the time her separation processing commenced. As a result, her service was appropriately described as "uncharacterized" in accordance with governing regulations. 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 (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: The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. 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. 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 for the period ending 6 June 1996 showing in: * item 24 (Characterization of Service): Honorable * 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. 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 601–210 (Active and Reserve Components Enlistment Program) provides that an RE code is not upgraded unless it was administratively incorrect when originally issued. a. RE code "1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. b. RE code "3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. c. RE code "4" applies to personnel separated from last period of active duty service with a nonwaivable disqualification. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The separation code is an administrative code used to designate the narrative reason for separation. The SPD/RE Code Cross Reference Table included in the regulation establishes that RE code "4" is the proper code to assign members separated with a separation code "JRA," for Soldiers who were discharged under the provisions of Army Regulation 635-200, Chapter 15-3A, by reason of a homosexual act. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned the separation code "JRA" will be assigned a RE code "4." 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-9a (Entry-level-status separation) provides that a separation will be described as entry-level, with service uncharacterized, if processing is initiated while a Soldier is in entry-level status, except when: (1) characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; (2) the Secretary of the Army, on a case-by-case basis, determines that a Honorable characterization of service is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty; or (3) the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. d. Paragraph 5–3 (Secretarial plenary authority) provided 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. e. Chapter 15, in effect at the time, prescribed the authority, criteria, and procedures for the disposition of military personnel who are homosexuals and military personnel who engage in homosexual acts, or are alleged to have engaged in such acts. It provided that personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity. Members who engaged in homosexual acts, even though they were not homosexuals within the meaning of this regulation, were considered to be unfit for military service because their presence was deemed an impairment to the morale and discipline of the Army. 5. 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. 6. 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. 7. 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) AR20200007796 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200007796 7 ABCMR Record of Proceedings (cont) AR20200007796 6