IN THE CASE OF: BOARD DATE: 1 February 2022 DOCKET NUMBER: AR20210010166 APPLICANT REQUESTS: * change her characterization of service from uncharacterized to honorable * correction of her narrative reason for separation to “Secretarial Authority” * correct her separation code to “JFF” and reentry (RE) code to RE-1 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement and Certification, dated 14 April 2021 * Exhibit 1 - Brief of Counsel, undated * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) packet * DD Form 2808 (Report of Medical Examination), dated 3 January 2005 * Separation packet * DD Form 4856 (Developmental Counseling Form), dated 23 March 2005 * DD Form 2807-1 (Report of Medical History), dated 30 March 2005 * DD Form 2808, dated 30 March 2005 * DD Form 2697 (Report of Medical Assessment), dated 30 March 2005 * Memorandum, Retaining and Holding Company, subject: Separation Under the Provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 15, dated 1 April 2005 * U.S. Army Medical and Dental Facilities Form 856 (Report of Mental Status Evaluation), dated 4 April 2005 * Memorandum, Retaining and Holding Company, subject: Separation Under the Provisions of AR 635-200, Chapter 15, dated 11 April 2005 * Memorandum, Training Support Battalion, subject: Separation Under the Provisions of AR 635-200, Chapter 15, dated 14 April 2005 * Memorandum, Installation Management Agency, Headquarters, U.S. Army Garrison, subject: Separation Under the Provisions of AR 635-200, Chapter 15, Homosexual Conduct, dated 14 April 2005 * Orders 108-0368, dated 14 April 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 she was discharged from the Army solely for her homosexual orientation. While in basic training, her first sergeant asked her about her sexual orientation and was told that if she lied and was caught she could face going to military prison. The first sergeant’s interrogation and her subsequent discharge was humiliating and subjected her to significant emotional trauma that she continues to battle today. There were no aggravating factors or any other justification for her discharge other than her homosexual admission. If the repeal of “Don't Ask, Don't Tell” (DADT) was in effect at the time of her service she would not have been discharged. This was an injustice at the time it happened, and the injustice continues today by causing her to fear discrimination when applying to jobs and being disqualified for veteran benefits that she should be entitled to. 3. The applicant’s attorney states following the repeal of DADT, the Department of Defense (DoD) issued guidance that set forth a streamlined process for discharge upgrades for those separated under DADT. The applicant satisfies the criteria necessary to merit relief under this standard. Accordingly, the Board should issue her a new DD Form 214 containing a narrative reason for separation, separation code, reentry code, and character of service that more accurately reflects her time in the U.S. Army. a. A 20 September 2011 memorandum issued by former Under Secretary of Defense sets forth a standard for review of discharges that occurred under DADT, including a listing of factors that support a finding that a former Service member is entitled to relief. The memorandum indicates that relief should typically be awarded to Service members "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." b. The applicant’s discharge did not involve any aggravating factors, she served her country honorably, and would have continued to do so if not for the DADT policy in place that led to her discharge. The Board should therefore grant the relief that she requests to remove an injustice. 4. In support of her application the applicant provided: a. A DA Form 4 which shows she enlisted in the Regular Army on 25 January 2005 for 4 years. b. A counseling she received from the first sergeant on 23 March 2005, for an entry level separation under the provisions of AR 635-200, Chapter 15 (Discharge for Homosexual Conduct) for her inappropriate behavior and fraternization with another Soldier. c. Three medical reports stating she was in good health and was qualified for separation. d. A memorandum dated 1 April 2005, shows her immediate commander notified her that she was being recommended for separation under the provisions of AR 635- 200, Chapter 15, for homosexual conduct due to a written statement she made stating she had engaged in homosexual activities. e. A Report of Mental Status Evaluation, dated 9 April 2005, clearing her for administrative separation under AR 635-200, Chapter 15. f. A memorandum dated 11 April 2005, shows she consulted with legal counsel and was advised of the contemplated action to separate her under the provisions of AR 635- 200, Chapter 15, and its effects, and the rights available to her. Her election to submit a statement on her own behalf is unknown and she requested consideration to have her case go before an administrative separation board. g. A memorandum dated 14 April 2005, shows her intermediate commander recommended she be separated from the U.S. Army with an entry level separation and an uncharacterized character of service under the provisions of AR 635-200, Chapter 15, for engaging in homosexual activities. h. A memorandum dated 14 April 2005, shows the appropriate authority directed the applicant be separated from the U.S. Army prior to her expiration term of service with an entry level separation and an uncharacterized character of service under the provisions of AR 635-200, Chapter 15. The requirement for a rehabilitative transfer was waived based on the applicant’s statement that she engaged in homosexual activities. i. Orders dated 18 April 2005, shows she was assigned to the U.S. Army Transition Point, Fort Leonard Wood, MO for transition processing, effective 19 April 2005. j. A DD Form 214 which shows she was discharged under the provisions of AR 635- 200, paragraph 15-3b on 19 April 2005. She completed 2 months’ and 25 days of net active service during this period and was not awarded or authorized an award. Her DD Form 214 shows in: * item 24 (Character of Service) - Uncharacterized * item 25 (Separation Authority) – AR 635-200, paragraph 15-3b * item 26 (Separation Code) - "JRB" * item 27 (Reentry (RE) Code) - "4" * item 28 (Narrative Reason for Separation) - Homosexual, Admission 5. The applicant contends that the DADT policy is no longer in effect, and requests correction of her narrative reason for separation, separation and reentry codes. She was discharged under the DADT provisions, which has changed and her DD Form 214 should reflect the changes. a. She served on active duty for 2 months’ and 25 days and was discharged with an uncharacterized character of service under AR 635-200, paragraph 15-3b, for homosexual admission. b. During the applicant's era of service, commanders were to separate Soldiers, under the provisions of Chapter 15, AR 635-200, when those Soldiers had been identified as having engaged in, desired to engage in, or intended to engage in homosexual acts. (1) A homosexual act meant bodily contact, actively or passively permitted, between members of the same sex for sexual satisfaction. (2) Where homosexuality formed the sole basis for separation, separation authorities could issue a character of service commensurate with the overall character of the Soldier's service. The regulation restricted the issuance of an under other than honorable conditions character of service to circumstances where the Soldier had: * attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation * committed the homosexual act with a person under 16 years of age * performed the homosexual act with a subordinate in circumstances that violated customary military superior-subordinate relationships * the homosexual act occurred openly in public view, for compensation, aboard a military vessel or aircraft, or in a location under military control where the act could have an adverse impact on discipline, good order, or morale, due to the close proximity of other members of the Armed Forces (3) Soldiers in an entry-level status received an uncharacterized character of service, based on an Army's policy that took effect with a 1 October 1982 revision to AR 635-200. For RA Soldiers, the regulation stated entry-level status began on the Soldier's entrance on active duty and terminated 180 days after the Soldiers' continuous active duty service. On a case-by-case basis, the Secretary of the Army, or designee, could direct the issuance of an honorable character of service, where clearly warranted by unusual circumstances that involved the Soldier's personal conduct and/or duty performance. c. In 1993, the DADT policy was implemented; under this policy the military was banned from investigating 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. (1) The guidance authorized Boards to amend the Soldier's narrative reason for discharge to "Secretarial Authority" with separation program designator code “JFF,” modify their character of service to honorable, change the RE code to reflect immediate eligibility (RE-1). (2) 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. 6. Her record shows her discharge was based solely on DADT prior to enactment of DADT with no other aggravating factors in her record. In reaching its determination, the Board can consider the applicant’s petition, his service record, and his statements in light of the published DoD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. A majority of the Board, after reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, given the absence of aggravating factors, determined that relief was warranted. Based upon a change in DoD policy relating to homosexual conduct, the Board concluded that making the changes to the applicant's DD Form 214 was appropriate. b. The member in the minority found that the applicant did not complete initial entry training and was not awarded an MOS. Because he did not complete training, regardless of the reason, he would receive an uncharacterized discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 19 April 2005 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 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 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 15 established policy and prescribed procedures for separating Soldiers for homosexual conduct. At the time paragraph 15-3b stated to discharge a Soldier that made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there was a further approved finding that the Soldier had demonstrated that he/she was not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. b. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter when the sole basis for separation was homosexual conduct. 3. The 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. 4. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, 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) to follow when taking action on applications from former service members discharged under DADT or prior policies. The memorandum states that, a. Effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: narrative reason for discharge “Secretarial Authority", the SPD Code: JFF; the characterization of the discharge to honorable; and the Reentry Code (RE) code to an immediately-eligible-to-reenter category (RE-1) b. For the above upgrades to be warranted, 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, and 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. c. The memorandum also recognized that 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 those 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010166 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1