ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2022 DOCKET NUMBER: AR20210016485 APPLICANT REQUESTS: •change narrative reason for separation •remove all investigative files related to homosexual conduct from his officialpersonnel file •personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Letter from Department of Veteran Affairs (VA) •DD Form 214 (Certificate of Release or Discharge from Active Duty) •Medical Document •Social Security Card FACTS: 1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states, in effect, she is requesting an upgrade the status of her DDForm 214 reason for separation by removing homosexual conduct and all associatedcodes. She also requests all investigative files related to homosexual conduct in herofficial military personnel file due to the repeal of Don’t Ask Don't Tell (DADT). 3.The applicant provides the following documents for the Board's consideration: a.A document from the VA, dated 26 June 2020, which shows she receiveddisability for the following: •liver hepetojejunstomy at 50 percent •post hysterectomy for cervical cancer at 30 percent •major depressive disorder at 30 percent •bursitis at 20 percent •T-12, L-1 facet syndrome at 20 percent •status post repair, anterior cruciate ligament at 10 percent •bilateral plantar fasciitis at 10 percent b.A portion of her Medical Examination. c.A copy of a portion of her social security card. 4.On 30 December 1991, at the age of 20 years old, the applicant enlisted in the USArmy Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 12 August 1992, the applicant was discharged from the USAR DEP and entered activeduty for a period of 6 years. Her DA Form 2-1 (Personnel Qualification Record) showsshe entered basic training on 14 August 1992 and advanced individual training on 10 October 1992. 5.On 11 December 1992, permanent orders were published awarding her the AircraftCrewman Badge. 6.On 22 December 1993, the applicant received the Army Achievement Medal formeritorious service while assigned as a crew chief. She successfully flew more than 100days, night and NVG accident free from 1 June 1993 to 19 February 1994. 7.On 1 February 1996, permanent orders were published awarding the applicant theArmy Good Conduct Medal for exemplary conduct, efficiency, and fidelity in activeFederal military service from 12 August 1992 through 11 August 1995. 8.On 1 June 1996, the applicant received a Certificate of Achievement for meritoriousachievement as an aircraft crew member. 9.The applicant received the NATO Medal for service with NATO from December 1995through June 1996. 10.On 18 November 1996, she received a Certificate of Achievement for outstandingachievement while completing 250 hours of accident free flying. 11.On 5 May 1997, permanent orders were published awarding the applicant theDriver-W Badge for performing assigned duties as a driver for over 12 consecutivemonths and 5,373 miles without a motor vehicle accident or traffic violation from 2January 1996 through 2 January 1997. 12.On 21 November 1997, the applicant reenlisted in the Army for a period of 2 years. 13.On 11 February 1998, the applicant received a Certificate of Achievement foroutstanding achievement while completing 504 hours of accident free flying. 14.On 9 July 1998, permanent orders were published awarding the applicant the ArmyGood Conduct Medal (2nd Award) for exemplary behavior, efficiency, and fidelity ofActive Federal service from 12 August 1995 to 11 August 1998. 15.On 11 August 1999, a Request for Medical Retention was completed requesting theapplicant be extended on active duty due to medical reasons. 16.On 22 November 1999, the applicant received a Certificate of Appreciation forexceptionally meritorious service during night shift during Hurricane Floyd 14 through 17 September 1999. 17.On 5 July 2000, the applicant received an Army Commendation Medal formeritorious service while assigned as an Instructor/Writer, Reenlistment, and Supplynoncommissioned officer (NCO) from 29 March 1998 to 15 August 2000. 18.An undated affidavit shows the applicant desired to remain on active duty beyondher date of expiration for the purpose of completing hospital care. 19.On 3 October 2000, a Request for Medical Retention was completed requesting theapplicant be extended on active duty due to medical reasons. The medical extensionwas approved. 20.On 3 January 2001, a Request for Medical Retention was completed requesting theapplicant be extended on active duty due to medical reasons. The medical extensionwas approved. 21.On 4 January 2002, permanent orders were published awarding the Army GoodConduct Medal (3rd Award) for exemplary behavior, efficiency, and fidelity of ActiveFederal Service from 12 August 1998 to 11 August 2001. 22.Email traffic shows the applicant was dating another female and informed theapplicant's company commander regarding their relationship, which prompted him tostart separation processing for homosexual conduct. The entire email is available forthe Board's review. 23.A statement by the female states she had a physical relationship with the applicantand that the applicant was harassing her since their relationship ended. The entirestatement is available for the Board's consideration. 24.On 13 September 2002, a Rights Warning Statement was completed by theapplicant, wherein she waived her rights and agreed to talk. The sworn statement wasnot available for the Board's review. 25.On 13 September 2002, the applicant received a Developmental Counseling Formfor noncompliance with Army Policy on homosexual conduct. The applicant disagreedwith the counseling and signed the form. The entire counsel form is available for theBoard's review. 26.On 13 September 2002, a Report to Suspend Favorable Personnel Actions (FLAG)was completed on the applicant for elimination. 27.On 24 September 2002, the applicant underwent a Report of Medical Examination,which shows she was qualified for separation. 28.On 30 September 2002, a memorandum subject: Report of Mental StatusEvaluation she was diagnosed with Adjust Disorder with Mixed Anxiety and DepressedMood. 29.In an undated memorandum, the applicant's commander advised her of his intent toseparate the applicant under the provisions of chapter 15 (Discharge for HomosexualConduct), paragraph 15-3b (Criteria for Discharge – The Soldier has Made a Statementaffirming Homosexuality). The commander's stated reason for this action was theapplicant admitted she engaged in homosexual conduct. 30.On 28 October 2002, the applicant acknowledged she was advised of the basis forthe contemplated separation action; she affirmed she was told of the rights available toher and the effect of waiving those rights. She requested to go before an administrativeseparation board. She chose not to submit a statement in her own behalf. 31.The applicant's chain of command recommended approval of the discharge. 32.On 19 November 2002, a first sergeant (1SG) submitted a memorandum in supportof the applicant, which states in effect: a.It was with great pleasure the 1SG was given the opportunity to comment on theabilities and potential of the applicant, one of the finest NCOs he ever served with. b.The applicant, daily, displayed a technical intellect and problem solving abilitythat was unmatched in their unit. She was charged with the care of not only over $23 million worth of Army equipment, but was also the training and mentoring of 10 subordinates. Her leadership abilities were unmatched. She always produced outstanding results, not matter what the challenge, in some of the most arduous conditions in the world. c.Because of her tireless work ethic, effective problem solving abilities,unshakeable poise in less than ideal conditions, unquestionable character, and integrity, the 1SG could say with confidence the applicant would be successful in any future endeavor. 33.In an undated memorandum, the applicant was notified of an Administrative BoardHearing. On 6 December 2002, she acknowledged receipt of the notification. 34.On 12 December 2002, the applicant acknowledged she was advised of the basisfor the contemplated separation action; she affirmed she was told of the rights availableto her and the effect of waiving those rights. She waived appearance before anadministrative board if she received an honorable discharge. She chose not to submit astatement in her own behalf; however, she submitted one that states in effect: a.The statement was submitted to withdraw her request for an AdministrativeSeparation Board. Furthermore, she would like to request the statement accompany all facts and evidence related to her homosexual conduct discharge filed on 13 September 2002 to be forwarded along with her packet to be reviewed b y the Secretary of the Army on their upcoming annual review. b.She would have departed active duty on 20 November 1999, but due to amedical ailment and the Army's Stop Loss, effective 15 January 2002, she was retained on active duty until her expiration term of service date 20 January 2003. On 29 August 2002, an allegation was made that prompted her commander to initiate a fact finding inquiry for homosexual conduct. c.In her attempts to educate herself on matter surrounding this matter, she wassurprised by the education she gained exploring public policy of the President, Executive Orders, Statutes, Regulations, and Non-legislative rules. How important dynamic interplay of people were within the administrative process. d.She was driven like she had never been before, not because she wanted to loiteron active duty, but because she honored her country and defended the Constitution for over ten years and she had reason to believe by investigating numerous references, that this fact-finding inquiry ws completed with no instructional guidelines to follow and left her with speculation in the fairness of that process. Her command probably felt that since she was so close to leaving Active Duty anyway, she wouldn't fight the discharge. She was sure many were asking shy she held in that long and some were certainly relieved the process was over. However, no one could be as grateful as she was to walk away with the education she received, while serving her last few months in the military. e.She decided to have an administrative separation board because one, it was herright and secondly, she was wronged maliciously by an individual who extorted her by bringing damming information forward to initiate the proceedings. This was the cause for her argument, when she learned just exactly how far this individual was willing to go to get her kicked out of the military. f.During the process, she kept in contact with medical professionals who had seenher through the course of the years and who were concerned over her general psychological and physical welfare. She had become completely heartbroken to know that her three-year struggle accepting a surgical mistake that left her impair in many ways was being overshadowed by new information about her sexual orientation. She thought someone within her chain of command would clearly see how ridiculous this entire situation was. g.A Newport News Detective shared her views on the matter as the applicantfollowed upon previously reported "criminal activities" for a job that required that disclosure. h.The female brought an initial inquiry about such conduct to the command thatinitially prompted the investigation that led to the applicant separation. It was apparent to another detective that the individual's report to local police over an "annoying phone call" was more than just that, at the female stated her intent was to cause the applicant harm in the military since she was unable to do it through the civilian judicial system. i.The detective knew from her experience that the female, a former military policeofficer and friend of the Fort Eustis Provost Marshal, and military police officer would have enough information and support to cause the applicant harm because of the "high standards of the military" and the policy regarding homosexuals. j.The applicant spoke to an attorney from the Servicemembers Legal DefenseNetwork about these issues that raised concern on this fact-finding inquiry. It was clearly obvious, that numerous people were willing to swear to their statements and assist her at her separation board. k.The applicant then decided to review all Congressional Policy, Testimony, andcases that pertained to the Department of Defense (DoD) policy on homosexuality. Frankly, the applicant did not agree to the lack of guidelines to follow for initiating and conducting a fact-finding inquiry on suspicion of homosexuality. However, no matter how hard she fought to retain herself on Active Duty, it would not happen because she did not meet the criteria for retention based upon her 13 September 2002 statement. Psychologically, she could not bear to regress after achieving a level of acceptance for medical injury caused by a military doctor. l.The applicant's issue, homosexuality, is a moral issue that is rooted and helddeeply to religious ties as to why is a national security issue, as General Schwarzkopf explained in 1994. The applicant disagrees with some of their views, but this cannot be about an individual interest when, especially more than ever, democracy is threatened. She felt, as a US Citizen, completely discriminated against and wronged by the actions that prompted this inquiry and the lack of guidelines on how to conduct a fact-finding inquiry on homosexuality. However, she could not endure another battle when she remarkable recovered from an illness that breathed new light into her. m.She could not change the policy nor fight against the government to changepolicies on her behalf because of sympathy. However, she would assist Servicemembers Legal Defense Network in their agenda outside of the military because of the lack of guidelines in the DoD policy for commanders to strictly follow. The Defense Secretary, at the time, requested in August 1999 that recommendations be on the exact matter that prompted her to write the letter. n.As she looked at her options, she honestly had to do what was best for her. Shestrongly condemns the individual who maliciously caused her harm, but nonetheless, time she spends chasing an answer on the issue, the more time she lost trying to move past it. Mentally, she could not afford for the action to be delayed and the possibility of another lengthy extension to complete the administrative board. o.As a citizen, she would examine her avenues outside of the military to expressher concerns regarding her case and discharge. It is well known that people in the military have a higher standard of moral and beliefs, and she felt to ask the Administration Separation Board to retain her on active duty was simply contradicting her defense. She was fighting the way in which her case was handled and how policy was vague in offering investigational guidance on how to conduct the fact-finding inquiry. After her research, how could she strongly affirm her defensive position, when legal counsel would give the Administrative Separation Board advise on the DoD policy concerning homosexuality? p.Her statement alone was grounds for dismissal according to policy. She could notrespectfully ask the board to retain her on active duty when she was fighting the possibility of policy errors in the handling of this case, fully knowing there was no specific guideline on how to conduct an inquiry. The Defense Secretary, at the time, certainly agreed by his recommendation to review the guidelines in 1998. A complete report from the Under Secretary, at the time, was sent in memorandum or the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Inspector General of the DoD regarding the specific subject: Guidelines for investigating threats against or harassment of Servicemembers based on alleged homosexuality. q.The applicant strongly felt, after reviewing all the printed material related to theJoint Chiefs of Staff, the Defense Secretary recommendations for policy review in August 1999, congressional testimony, and inquiring within her own investigation, the fact remained clear, the guidelines remained unclear. r.The applicant was withdrawing her request for an Administration SeparationBoard, because if it was policy that she wanted to be followed, the she cannot ask the board to retreat from doctrine and rule in her favor. However, she would continue to fight the issues with the attorneys at the Servicemembers Legal Defense Network and actively raise this issue with legislators to review their guidelines for investigating threats or harassment of Servicemembers based on alleged homosexuality whether that threat is from within the military or not. 35.On 17 December 2002, the Convening Authority approved the applicant's requestfor a conditional waiver of a separation board and directed her discharge with anhonorable discharge due to homosexual conduct. 36.On 24 December 2002, the applicant was discharged accordingly. She hadcompleted 10 years, 4 months, and 13 days of active duty service. The form alsoshows: •Character of Service: Honorable •Separation Authority: Army Regulation 635-200 (Personnel Separations,paragraph 15-3b •Separation Code: "JRB" •Narrative Reason for Separation: Homosexual Conduct (Statement) •Reentry Code: "4" 37.The applicant is requesting her narrative reason or separation be changed fromhomosexual conduct and removal of the investigation dealing with homosexual conductfrom her military personnel file due to repeal of DADT. a.In 1993, the "Don't Ask – Don't Tell" (DADT) policy was implemented; under thispolicy 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 fordischarge to "Secretarial Authority" with SPD 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 bebased 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. b.Her record shows her discharge was based solely on DADT or similar policy inplace prior to enactment of DADT. She had one NJP for violating a lawful general regulation for committing homosexual acts, committing indecent acts with a female Soldier, and for communicating a threat. c.In reaching its determination, the Board can consider the applicant's petition, herservice record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, to include the DoDguidance on liberal consideration when reviewing discharge upgrade requests, theBoard determined that relief was warranted. The applicant was discharged solely basedon homosexual conduct. There were no other aggravating factors in the record, such asmisconduct. Based upon a change in DoD policy relating to homosexual conduct, theBoard concluded that making the changes to the applicant's DD Form 214 wasappropriate. 2.The applicant's request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case. 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 issuing the applicant a new DD Form 214 for the period ending 24 December 2002 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 X CHAIRPERSON 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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.Army Regulation 635-200 (Personnel Separations), in effect at the time, set policies,standards, and procedures for the separation of enlisted personnel. Chapter 15(Discharge for Homosexual Conduct), provided homosexual conduct was grounds forseparation from the Army under the criteria set forth in paragraph 15-3. This includespre-service, prior service, or current service homosexual conduct. a.Paragraph 15-3 provides a Soldier will be discharged if one or more of thefollowing findings have been made and are approved by the separation authority: if he or she engaged in, attempted to engage in, or solicited another person to engage in a homosexual act or acts; made a statement that he or she is a homosexual or bisexual, or married or attempted to marry a person known to be of the same biological sex. b.An honorable or general under honorable characterization is appropriate unlessan under other than honorable conditions discharge is warranted and there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act: •by using force, coercion, or intimidation •with a person under 16 years of age •with a subordinate in circumstances that violate customary military superior-subordinate relationships •openly in public view •for compensation •aboard a military vessel or aircraft •in another location subject to military control under aggravating conditions notedin the finding that have an adverse impact on discipline, good order, or moralecomparable to the impact of such activity aboard a vessel or aircraft. 3.The "Don't Ask - Don't Tell" (DADT) policy was implemented in 1993 during theClinton administration. This policy banned the military from investigating servicemembers about their sexual orientation. Under that policy, service members may beinvestigated and administratively discharged if they made a statement that they werelesbian, gay or bisexual; engaged in physical contact with someone of the same sex forthe purposes of sexual gratification; or married, or attempted to marry, someone of thesame 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 (the change should be to "Secretarial Authority" SPD Code JFF) • characterization of the discharge to honorable • 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. 6. 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. 7. 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//