IN THE CASE OF: BOARD DATE: 6 April 2022 DOCKET NUMBER: AR20210014627 APPLICANT REQUESTS: * correction of the gender marker from female to male on an unspecified record * in effect, a physical disability discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Documentation (18 pages) 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 he is requesting a change in the gender marker to reflect male. He is also requesting removal of “sexual orientation” and a change in the separation reason for his discharge. He believes he should be discharged instead for his mental health disability evidenced from his first request for help in 2006. He has fully transitioned to male. He had been suffering with self-doubt, self-hate, suicidal ideations, bouts of rage that led him to lose his job and relationship, and other mental health issues. He was harassed and forced out of the Army because people made the assumption he was gay. He did not know he could file for disability until last year when he filed. 3. The applicant provides medical documentation (18 pages) in support of his request. * Standard Form (SF) 600 dated August 2004 – insomnia related to adjustment anxiety * extracts of the Disability Benefits Questionnaire (DBQ) related to post-traumatic stress disorder (PTSD) 4. The applicant did not provide legal documentation and/or evidence of a gender change, nor did he specify on which record he wants the gender marker corrected. The DD Form 214 (Certificate of Release or Discharge from Active Duty) does not identify gender. 5. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army on 11 February 2004. b. On 28 September 2004, the applicant submitted a request for separation indicating a statement of sexual orientation was being provided to rebut the presumption created under the current Department of Defense (DoD) and Department of the Army (DA) regulations. The applicant stated “I am homosexual and I feel that I have a natural propensity to engage in sexual activity with members of the same sex” and wished to be discharged from the U.S. Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 15 (Discharge for Homosexual Conduct). c. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated against the applicant for elimination effective 28 September 2004. d. A DA Form 3822-R (Report of Mental Status Evaluation), dated 29 September 2004, confirmed the applicant was referred for a mental evaluation due to elimination consideration. The physician noted in the remarks, the applicant was psychiatrically cleared for administrative action deemed appropriate by the command. The evaluation further indicated: * normal behavior and fully alert * fully oriented and unremarkable mood or affect * clear thinking process and normal thought content * had the mental capacity to understand and participate in the proceedings * was mentally responsible * met the retention requirements of Chapter 3, AR 40-501 e. On 28 September 2004, the applicant’s immediate commander notified the applicant of intent to initiate separation proceedings under the provisions of AR 635- 200, Chapter 15 for homosexual conduct. The specific reasons for his proposed recommendation were based on the applicant’s propensity to engage in sexual activity with members of the same sex. The applicant acknowledged receipt of the notification of separation action on the same day. f. On 28 September 2004, after consulting with legal counsel, the applicant acknowledged: * the rights available and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge g. On 28 September 2004, the immediate commander-initiated separation action against the applicant for homosexual conduct. The commander recommended that his period of service be characterized as honorable. The intermediate commander recommended approval. h. On 5 October 2004, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 15 for homosexual conduct. The applicant would receive an Honorable Discharge Certificate. i. Orders 280-0022, dated 6 October 2004, discharged the applicant from active duty with an effective date of 15 October 2004. j. On 15 October 2004, the applicant was honorably discharged from active duty. The DD Form 214 shows 8 months and 5 days of active service with no lost time. It also shows: * Item 25 (Separation Authority) - AR 635-200, paragraph 15-3b * Item 26 (Separation Code) - JRB * Item 28 (Narrative Reason for Separation), Homosexual Admission 6. The applicant's service record was void of documentation that shows he was treated for an injury or an illness that warranted entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the criteria and procedures for the fact finding inquiries of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted. 8. Under Secretary of Defense (Personnel and Readiness) memorandum states that, effective 20 September 2011, 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. An upgrade, if and when warranted, would entail a change to: * narrative reason for discharge (to "Secretarial Authority" with the Separation Code of JFF) * characterization of service to honorable * the RE code to an immediately-eligible-to-reenter category 9. By regulation (AR 635-40), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-4 states Soldiers who sustain or aggravate physically- unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 10. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 11. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 12. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 13. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 14. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. One page from his military medical record indicates he was seen shortly after arriving at his first duty station due to personal issues back at home and at his duty station causing stress. He stated he was having difficulty sleeping for the past month. He was prescribed Ambien. The rest of his medical record was not available for review. A review of his service record indicates the applicant submitted a request for separation due to being homosexual. On 29 Sept 2004, he completed a mental status evaluation and met retention standards IAW AR 40- 501. A review of his Compensation and Pension examination report indicates he was treated for Major Depression Disorder (MDD) as a teenager prior to military service. The examiner opined that his military service likely exacerbated his condition. A review of JLV indicates the applicant has a service connected disability rating of 70% for MDD. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. It is not uncommon for individuals with Gender Identity Disorder to initially believe they are homosexual. Per the applicant and his VA record he has transitioned to male. Recommend changing DD214 to change narrative reason to Secretariat Authority and if possible change gender to reflect his current gender. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding the applicant met retention standards at the time of his discharge. It is not uncommon for individuals with Gender Identity Disorder to initially believe they are homosexual. However, the Board determined applicant admitted to his leadership his sexual orientation and his response influenced the discharge determination. With the circumstances discussed in this case, the Board agreed it is equitable to correct the applicant's narrative reason, separation code and reentry code. Therefore, partial relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 15 October 2004 showing in: • 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 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a physical disability discharge. 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, United States Code, 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15, in effect at the time, prescribed the criteria and procedures for fact finding inquiries of homosexual personnel and procedures for their discharge from the Army. In subsection 15-3(b) a Soldier could be discharged if a statement had been made that he/she is a homosexual or bisexual, or words to that effect. A discharge under other honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section II and if there is a finding during the current term of service that the soldier attempted, solicited, or committed a homosexual act In all other cases, the type of discharge would reflect the character of the Soldier’s service. 3. DADT policy was implemented in 1993 during the Clinton presidency. 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, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (to "Secretarial Authority" with the SPD code of JFF) * characterization of service to honorable * the RE code to an immediately-eligible-to-reenter category 5. 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 and there were no aggravating factors in the record, such as misconduct. The memorandum further states that 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. 6. 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 Department of Defense (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. 7. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 9. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 11. Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 13. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014627 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1