IN THE CASE OF: BOARD DATE: 18 November 2021 DOCKET NUMBER: AR20210011435 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable narrative reason for separation 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 4 January 2021 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 he wants references to sexual orientation removed from his DD Form 214. At the time of his service, sexual orientation was a reason to leave the military; however, now it is acceptable. Had the current policy been in effect at the time he served, he would have stayed in the Army. 3. The applicant enlisted in the Regular Army on 3 July 1996. Upon completion of initial entry training, he was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic). He was assigned to a unit at Fort Campbell, Kentucky. 4. The applicant rendered a memorandum on 16 October 2000, addressed to his immediate commander, wherein he requested to be administratively separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 15. After struggling with a moral dilemma, it was clear that he needed to inform his commander that he was bisexual. He felt he had a natural propensity to engage in sexual activity with members of the same sex, conduct that is proscribed by Army Regulation 635-200 and the Uniform Code of Military Justice (UCMJ). He sincerely desired to fulfill his enlistment commitment to the Army but could not do so at the expense of being required to lie to his friends and commanders. Given his state of sexual orientation, and since he did not wish to rebut the presumption created under current Department of Defense (DoD) and Department of the Army regulations, he respectfully requested a discharge from the Army in accordance with Army Regulation 635-200, Chapter 15. 5. The applicant was notified on 17 October 2000 of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexuality. 6. The applicant acknowledged receipt of the proposed separation notification on 17 October 2000. He consulted with legal counsel 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. 7. The applicant's immediate commander formally recommended the applicant's separation from service on 17 October 2000, under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexuality. 8. The separation authority approved the recommended separation action on 18 October 2000, and directed the issuance of a DD Form 256A (Honorable Discharge Certificate). 9. The applicant was discharged on 27 October 2000. His DD Form 214 shows he was credited with completing four years, three months, and five days of net active service and contains the following entries in: * item 18 (Remarks) – "MEMBER HAS COMPLETED FIRST TERM OF SERVICE" * item 24 (Character of Service) – Honorable * item 25 (Separation Authority) – Army Regulation 635-200, Paragraph 15-3b, * item 26 (Separation Code) – JRB * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – Homosexual Admission 10. 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. 11. 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. 12. 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 (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to follow when taking action on applications from former service members discharged under DADT or prior policies. BOARD DISCUSSION: 1. After reviewing the application and supporting documentation, the Board found relief is warranted. 2. The Board found the repeal of DADT and the guidance from the Under Secretary of Defense for Personnel and Readiness sufficient as a basis for relief in the case. The Board determined the applicant's DD Form 214 should be reissued to show he was discharged under Secretarial authority with the associated codes for that reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :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 his DD Form 214 to show the following entries: * item 25 – AR 635-200, paragraph 5-3 * Item 26 – JFF * Item 27 – 4 * Item 28 – 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 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. At the time, this regulation prescribed the separation code "JRB" was the appropriate code to assign to Soldiers separated under the provisions of Chapter 15 of Army Regulation 635-200, based on homosexuality. Additionally, the SPD/Reentry (RE) Code Cross Reference Table established RE code "4" as the proper RE code to assign Soldiers separated under this authority and for this reason. 3. 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. 4. 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. 5. 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. 6. 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) AR20210011435 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210011435 1 ABCMR Record of Proceedings (cont) AR20210011435 1