IN THE CASE OF: BOARD DATE: 24 March 2021 DOCKET NUMBER: AR20200008257 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 [USC], Section 1552), dated 8 May 2020 * Legal Brief, prepared by Table of contents listing: * Exhibit 1 - DD Form 214 (Certificate of Release from Active Duty), for the period ending 7 August 1987 * Exhibit 2 – DADT Policy; Title 10, USC 654, pages 340-342 * Exhibit 3 – DADT Repeal Act of 2010, H.R. 2965, S. 4023, 4-page printout from www.law.cornell.edu * Exhibit 4 – Uniform Code of Military Justice, 10 U.S.C. 925 – Article 125, 2- page printout from law.justia.com * Exhibit 5 – National Defense Authorization Act (NDAA) for fiscal year 2014, 127 STA. 672 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 defers his statement to counsel. 3. Counsel states: a. The applicant's DD Form 214 should be amended to change his character of service to honorable; remove his current narrative reason from separation from "admission of homosexuality/bisexuality" to "secretarial authority"; and to change all other codes, reenlistment codes, and all other markings to reflect honorable service. The applicant was discriminated against based on his sexuality. The discrimination has been expressly and retroactively abolished by the Department of Defense (DoD). The Board must review this claim on the merits and the reasons for the delay to properly determine whether it is in the "interest of justice" to grant a waiver. b. Counsel presents the following as facts: (1) The applicant enlisted in the Army in the 1980’s during a time when gays and lesbians were not accepted into the military. They were seen as a disgrace despite their desire to serve their country. The applicant was motivated to join the military for several reasons; there were few resources after he graduated high school and his family did not have money for college. The applicant’s family was from the south, where they take pride in military service. The applicant enjoyed the ideal of being in the armed forces, having structure, comradery and the sense of pride appealed to him. He wanted to live a meaningful life and decided that enlisting in the Army was the right decision. (2) The applicant was unsure of his sexuality when he entered the military but has lived his entire life as a heterosexual man. The Applicant married a young lady when he first entered the military. He thought he would be able to convince himself that he was a heterosexual man because of the negative opinions of homosexuals in the military and the south. The applicant was still struggling to understand who he was. He was invited to a night out with one of his fellow servicemen who was a homosexual. They ended up going to a gay bar and while out, a sergeant spotted him. The sergeant soon began turning the applicant’s life upside down. c. The sergeant who spotted the applicant began to stalk the applicant and she started to tell other servicemen about his whereabouts. The applicant began to receive negative treatment and harassment, was called names such as "faggot," and was ostracized. The harassment turned from verbal to physical and the comradery and family the service provided was no longer a reality for him. While in service he sustained an injury of a cracked knee and had to use crutches. He could no longer stay on base and was overjoyed to be able to go home to his wife and no longer deal with the behavior. As the applicant continued to battle with sexual identity, he knew the solution to end the problem would be to leave the military. d. The applicant felt forced to tender his resignation of the unbearable harassment, name calling, threats, physical violence, and even blatant suggestions to "just leave." He was tired of being treated like an outsider with his own troops, the same men and women who once treated him like family had betrayed and abandoned him. The applicant went to his sergeant and disclosed that he was a homosexual, the sergeant told his captain and the discharge process began. e. The applicant met with a Judge Advocate General (JAG) Corps attorney and was asked if he was forced to request a discharge and the applicant replied "no." The meeting ended and he never heard from JAG again. The discharge process only took somewhere from two weeks to a month. The applicant did not warrant a physical due to the surrounding circumstances, he was discharged with an under honorable conditions discharge. It pained him severely that he was not given an honorable discharge. He felt lost and had to struggle to adjust back to everyday life. He was embarrassed and ashamed, and his separation caused a rift in his relationship with his family. He felt like a confused failure. f. After the applicant was discharged from the military, he struggled to adjust to everyday life as a civilian. The applicant began to drink heavily to dull the pain and overwhelming thoughts regarding his identity and his future. The applicant also found himself dabbling with different drugs. Due to his substance abuse, he contracted Hepatitis B but cannot recall the events that led to his condition. In addition to his addiction, after about 6-8 months of marriage, his marriage failed. His wife forced him out of their home and they got divorced. He tried to maintain the life he pictured for himself but it fell apart. He lost his career, his marriage, and much of his understanding of life. g. The applicant’s mother sent for him to come to, hoping to give him an opportunity of a new beginning. However, due to his alcoholism, drug abuse, and confusion regarding his sexuality, it resulted in him struggling to sustain a life for himself. He tried to find work but it seemed that every time he secured a job his addictions would stand in the way. His addiction made it hard to work and he ended up being fired three times. While in, he came out to his friends and family; however, he still struggled to find his identity and did not know how to act as a gay man. The applicant finally found love; unfortunately, his addiction problem didn’t improve and in 2001, his long term partner left him. His partner could no longer deal with a loving person with substance addiction. h. In 2000, the applicant hit rock bottom and drove into the secret service entrance at a Capital building. After being arrested and sobering up, he realized that his addiction was ruining his life. After his legal battle, he began attending alcoholic anonymous (AA) meetings, the meetings were not having an impact. He was informed to go to AA with other gay/lesbians since his addiction began due to his sexuality. The applicant suffered with chronic depression. Unfortunately, he has spent much of his life embarrassed about his discharge from the military, as well as a life long struggle with his sexuality that was too much of a burden to bare, which in turn resulted in years of addiction. The applicant remains in AA and has 17 years of sobriety. Due to his back injury, he is only able to work part time. He has come a long way since being discharged from the military and had it not been for him being forced to reveal his sexuality, he would have likely spent his career in the military. One can only imagine how much different his life would have been if he was not discharged so early in his military career because he was gay. i. There are no other recorded reasons in the applicant’s records that would provide an alternative reason for the discharge besides his sexual orientation. There is no mention of dishonorable conduct, behavioral issues or delinquency. The applicant was wrongfully discharged from the Army due to being homosexual. Because of the reasons mentioned, the applicant has grounds for upgrading his discharge to an honorable discharge. 4. The applicant enlisted in the Regular Army on 17 April 1986. 5. A DA Form 3822-R (Mental Status Evaluation), dated 16 July 1987, indicates the applicant freely admitted to his homosexuality. He was found to be mentally responsible and cleared for any administrative action deemed appropriate by command. 6. The applicant declined to undergo a medical examination for separation. 7. In a sworn statement, dated 24 July 1987, the applicant acknowledged that he was homosexual. He joined the Army in hopes that his feelings would go away. Since he arrived at Fort Sill, Oklahoma, he had engaged in two relationships with other males. 8. The applicant's commander notified the applicant that he was initiating actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 15. The notification memorandum is not available for review; however, the applicant's statement of elections, dated 29 July 1987, corroborates this initial notification. He acknowledged he had been afforded the opportunity to consult with counsel but declined the opportunity. He declined to submit a statement on his own behalf. 9. The applicant’s immediate commander formally recommended the applicant's separation from service on 29 July 1987, under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexuality. 10. The separation authority approved the recommended action on 31 July 1987 and directed the applicant receive a General Discharge Certificate. 11. The applicant was discharged on 7 August 1987, under the provisions of Army Regulation 635-200, Chapter 15. His DD Form 214 shows the following entries in: * Item 24 (Character of Service) – Under Honorable Conditions * Item 25 (Separation Authority) – AR 635-200, para 15-3b * Item 26 (Separation Code) – JRB * Item 27 (Reentry Code) – 3 * Item 28 (Narrative Reason for Separation) – Admission of Homosexuality/ Bisexuality 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, U.S. Code, provided 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 review of the application and all evidence, and in light of the repeal of "Don't Ask, Don't Tell" with commensurate changes in law regarding homosexuality, the Board determined there is sufficient evidence to grant relief. Evidence in the record show the applicant admitted to being homosexual which influenced his discharge determination. With the circumstances discussed in this case, the Board agreed it is equitable to upgrade the applicant's discharge characterization to honorable." 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 7 August 1987 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. 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 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. 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, provided 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, DoD 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) AR20200008257 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200008257 7 ABCMR Record of Proceedings (cont) AR20200008257 6