IN THE CASE OF:  

BOARD DATE:  5 May 2021

DOCKET NUMBER:  AR20210007334


APPLICANT REQUESTS:  in effect, the revision of the separation authority and 
narrative reason for separation listed on her DD Form 214 (Certificate of Release or 
Discharge from Active Duty) by removing any reference to misconduct

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214

FACTS:

1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto). 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 Army policy, with regard to sexual orientation, has changed 
since her separation; she believes the misconduct reference is no longer used for her 
type and character of discharge.

3. The applicant's service records show:

	a. On 25 August 1980, the applicant enlisted into the U.S. Army Reserve (USAR) as 
a Reserve Officer's Training Corps cadet, and, on 28 June 1982, after earning a 
baccalaureate degree and completing initial entry training, she executed her Regular 
Army commissioned officer oath of office. Orders transferred her to Germany, and she 
arrived at her unit on 13 September 1982. Effective 1 December 1985, U.S. Army 
Military Personnel Center (MILPERCEN) orders promoted her to captain.

	b. On or about 1 October 1989, the applicant received a DA Form 67-8 (U.S. Army 
Officer Evaluation Report (OER)) for the rating period 19890120 through 19891001. The 
report was very favorable, with her rater showing the applicant "Always Exceeded 
Requirements" and recommending "Promote Ahead of Contemporaries." Her senior 
rater rated her above center of mass/top block.

	c. On 24 July 1990, a general officer issued the applicant a memorandum of 
reprimand (GOMOR) for "displaying extremely poor judgment and engaging in an 
improper senior-subordinate relationship with two female enlisted Soldiers." A CID (U.S. 
Army Criminal Investigation Command) investigation had revealed the applicant had 
permitted a private (PV2)/E-2 to reside at the applicant's off-post quarters, and the 
applicant and the PV2 had slept together in the same bed and engaged in amorous 
activity. In addition, the applicant allowed a sergeant, assigned to the applicant's unit, to 
stay overnight with the applicant in bachelor officers' quarters, and the applicant and the 
sergeant shared the same bed and engaged in amorous activity. 

	d. On 7 August 1990, the applicant acknowledged receipt of the GOMOR and 
elected not to make a statement. On 9 August 1990, the GOMOR imposing official 
directed the GOMOR's filing in the applicant's official military personnel file.

	e. On or about 1 October 1990, the applicant received her annual OER, for the rating 
period 19891002 through 19901001. While the report included many very favorable 
comments, the rater noted the applicant had displayed poor judgment during her off-
duty time; the rater reflected the applicant as always exceeding requirements but 
indicated "Promote with Contemporaries." The applicant's senior rater stated, 
"Unfortunately, she exercised poor judgement in her off-duty conduct and received a 
General Officer Letter of Reprimand, clouding an otherwise bright future." The senior 
rater rated the applicant below center of mass. 

	f. On 10 December 1990, the U.S. Total Army Personnel Command (PERSCOM; 
formerly MILPERCEN) advised the applicant, via memorandum, that the applicant was 
required to show cause for retention on active duty. 

		(1) The memorandum stated its authorities were paragraphs 5-11a (Misconduct, 
Moral or Professional Dereliction, or in Interests of National Security), subparagraphs 
(5) (Acts of Personal Misconduct) and (8) (Conduct Unbecoming of an Officer), Army 
Regulation (AR) 635-100 (Personnel Separations – Officer Personnel). In addition, the 
memorandum cited the events addressed the aforementioned GOMOR, and listed, as 
evidence, the GOMOR and an officer evaluation report, for the rating period 
19891002 through 19901001. 

		(2) PERSCOM advised the applicant she could seek the assistance of counsel to 
prepare a written statement indicating any pertinent facts or rebuttal. Additionally, the 
least favorable character of service was under other than honorable conditions for a 
separation based on misconduct, moral or professional dereliction.

		(3) The applicant could submit her resignation in lieu of elimination, in 
accordance with chapter 4, AR 635-120; request discharge in lieu of elimination, per 
chapter 8, AR 635-120; or submit a rebuttal or declination statement and appear before 
a board of inquiry. PERSCOM gave the applicant 320 days from the date of receipt to 
acknowledge the notification memorandum and exercise one of her available options.

	g. On 1 February 1991, the applicant acknowledged receipt of the show-cause 
memorandum, and stated she did not wish to make a statement or submit a rebuttal, 
but, in accordance with chapter 4 (Resignation in Lieu of Elimination under AR 635-100, 
Chapter 5), AR 635-120 (Personnel Separations – Officer Resignations and 
Discharges), she was submitting her resignation in lieu of elimination. On 1 February 
1991, the applicant voluntarily tendered her resignation in lieu of further elimination 
proceedings.

	h. In an undated endorsement, the applicant's battalion commander recommended 
approval of the applicant's resignation. The commander stated he had initially requested 
the applicant's elimination in June 1990, when he first learned of the applicant's 
relationship with the two enlisted Soldiers. Subsequently, a general officer issued the 
applicant a GOMOR, and the applicant submitted a request for an unqualified 
resignation; due to Stop Loss, however, the applicant's resignation was not accepted. 
Despite these personnel actions, the applicant continued to perform her duties in an 
exemplary manner and maintained a positive and cooperative attitude. Additionally, the 
applicant terminated all contact with the two enlisted Soldiers, and the commander 
affirmed there were no indications of any further misconduct. Based on his observations 
of the applicant, over the past 22 months, the battalion commander recommended an 
honorable character of service.  

	i. On 7 March 1991, a PERSCOM message announced the approval of the 
applicant's resignation, by order of the Secretary of the Army; on 1 April 1991, orders 
honorably discharged the applicant. Her DD Form 214 shows she completed 8 years, 
10 months, and 15 days of net active duty service; she was awarded or authorized the 
Army Service Ribbon, National Defense Service Medal, Army Commendation Medal 
(2nd Award), Army Achievement Medal (2nd Award), and Overseas Service Ribbon. 
The separation authority was AR 635-120, chapter 4, the separation code was "BNC," 
and the narrative reason for separation was "Misconduct, Moral or Professional 
Dereliction."

4. The applicant requests the removal of any reference to misconduct on her 
DD Form 214; she argues Army policy has changed, with regard to sexual orientation, 
and she believes the misconduct reference is inappropriate for her type of discharge.

	a. During the applicant's era of service, the Army required officers to show cause for 
retention, under paragraph 5-11, AR 635-100, upon finding evidence of misconduct 
and/or moral or professional dereliction. 

		(1) PERSCOM had the authority to initiate separation action against a non-
probationary commissioned officer (i.e. a Regular Army officer with 5 or more years of 
active commissioned service). Initial administrative processing included notifying the 
officer of the elimination action, in writing, and informing the officer that he/she was 
required to show cause for retention. 

		(2) The notification also advised the officer that he/she:

*	could tender his/her resignation in lieu of elimination (chapter 4, AR 635-120) 
or request discharge in lieu of elimination (chapter 8 (Discharge in Lieu of or 
as a Result of Elimination Proceedings), AR 635-120; Regular Army Officers 
only)
*	could appear before a board of inquiry to present his/her case for retention
*	had 30 days to acknowledge receipt of the notification, prepare a written 
statement (with assistance of counsel), and elect one of the foregoing options 
(resignation, discharge, or board of inquiry)
*	would be separated 21 days after receipt of notification of an approved 
separation request in lieu of elimination (when stationed overseas) 

		(3) Based on the aforementioned options, the affected officer could resign in lieu 
of elimination, per chapter 4, AR 635-120; commanders were required to ensure there 
was no element of coercion in the officer's resignation choice, and commander had to 
permit the officer's access to counsel. The regulation allowed separation authorities to 
issue either Honorable or General Discharge Certificates (except for substandard 
performance of duty, where the regulation mandated a general discharge).

	b. In 1993, the military implemented the "Don't Ask – Don't Tell" (DADT) policy. 
Under this policy, the military could no longer investigate service members based on 
their sexual orientation. In 2011, the Under Secretary of Defense (Personnel and 
Readiness) issued guidance stating Boards should normally grant requests for 
character of service upgrades when the former Soldier's separation was due to DADT or 
a similar earlier policy. The guidance authorized Boards to amend the Soldier's SPD to 
"MFF" (for officers) and "Secretarial Authority" for the narrative reason for separation. 
However, for the above upgrades to be warranted, the original discharge had to be 
based solely on DADT (or a similar policy in place prior to enactment of DADT), and no 
other aggravating factors in the record, such as misconduct.


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.  Based upon a change in DoD 
policy relating to homosexual conduct, the Board concluded that making the changes to 
the applicant's narrative reason and separation code on the applicant’s DD Form 214
was appropriate.  Furthermore, the Board determined removal of the GOMOR is 
warranted based on the changes in the law.  


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 removal of the GOMOR 
for the period 19891002 through 19901001 and issuing the applicant a
DD Form 214 for the period ending 1 April 1991 and showing in:

•	item 25 (Separation Authority):  Army Regulation 635-200, chapter 5
•	item 26 (Separation Code):  MFF
•	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 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 635-100, in effect at the time, prescribed policies and procedures for the 
administrative elimination of officers. Chapter 5, AR 635-100, outlined the means and 
processes for eliminating officers from the Army due to substandard duty performance, 
misconduct, or moral or professional dereliction.

	a. Upon finding evidence of misconduct and/or moral or professional dereliction, 
PERSCOM had the authority to initiate separation action against a non-probationary 
commissioned officer (i.e. a Regular Army officer with 5 or more years of active 
commissioned service). Initial administrative processing included notifying the officer of 
the elimination action, in writing, and informing the officer that he/she was required to 
show cause for retention. 

	b. The notification also advised the officer that he/she:

*	could tender his/her resignation in lieu of elimination (chapter 4, AR 635-120) 
or request discharge in lieu of elimination (chapter 8 (Discharge in Lieu of or 
as a Result of Elimination Proceedings), AR 635-120; Regular Army Officers 
only)
*	could appear before a board of inquiry to present his/her case for retention
*	had 30 days to acknowledge receipt of the notification, prepare a written 
statement (with assistance of counsel), and elect one of the foregoing options 
(resignation, discharge, or board of inquiry)
*	would be separated 21 days after receipt of notification of an approved 
separation request in lieu of elimination (when stationed overseas) 

	c. Based on the aforementioned options, the affected officer could resign in lieu of 
elimination, per chapter 4, AR 635-120.

3. AR 635-120, in effect at the time, provided guidance for the resignation of officers. 
Chapter 4 stated commissioned officers could request resignation in lieu of elimination, 
under the provisions of AR 635-200, chapter 5. A tender of resignation request resulted 
in the immediate suspension of elimination proceedings, and the officer concerned 
remained assigned to his/her major command until Department of the Army made a 
final determination. Commanders were required to ensure there was no element of 
coercion in the officer's resignation choice, and commander had to permit the officer's 
access to counsel. The regulation allowed separation authorities to issue either 
Honorable or General Discharge Certificates (except for substandard performance of 
duty, where the regulation required a general discharge).

4. The "Don't Ask - Don't Tell" (DADT) policy was implemented in 1993 during the 
Clinton administration. This policy banned the military from investigating service 
members about their sexual orientation. Under that policy, service members may be 
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. 

	a. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 
20 September 2011, with the subject:  Correction of Military Records Following Repeal 
of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) regarding discharges based on DADT or prior policies. The memorandum 
states, effective 20 September 2011, Service BCM/NRs and DRBs should normally 
grant requests, in these cases, to change the:

*	narrative reason for discharge (the change should be to "Secretarial 
Authority" and SPD Code to "MFF" (for officers) 
*	characterization of the discharge to honorable 
*	RE code to an immediately-eligible-to-reenter category

	b. The memorandum states BCM/NRs and DRBs may grant upgrades when 
applicants have met the following conditions:  DADT, or similar prior policy, was the sole 
basis for the original discharge, and there were no aggravating factors in the record, 
such as misconduct. The memorandum further states that, although BCM/NRs and 
DRBs must evaluate each request on a case-by-case basis, the award of an honorable 
or general discharge normally affirms the absence of aggravating factors.

	c. The memorandum also recognized that, although BCM/NRs have a significantly 
broader scope of review and have the authority to provide much more comprehensive 
remedies than 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 Congress repealed DADT, 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 those same or prior periods. Thus, the fact separation authorities 
issued an applicant 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210007334


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS


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