1. Applicant's Name: a. Application Date: 3 June 2021 b. Date Received: 7 June 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable, and changes to the reentry eligibility (RE) code and narrative reason. The applicant seeks relief contending, in effect, the applicant would like to reenlist. It has been 14 years since the applicant returned to civilian life and the applicant has felt empty and shortchanged. The applicant wants to offer services to our country for its needs and the ability to learn, train and represent the Armed Forces. The applicant is now 36, with corrections made the applicant would be able to enlist in the Army Reserve and take part in the responsibilities of a service member. Since 2008 the applicant has become a mine foreman, industrial electrician, and is finishing a private pilot license. The applicant is in good health and eager to serve. The applicant recently became aware that a change to military records was possible. At the time of discharge in 2008, Don't Ask Don't Tell (DADT) prohibited this classification and no service member could remain in service until the repeal in 2011. With regard to the discharge in question, it is no longer grounds for separation. b. Board Type and Decision: In a records review conducted on 7 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the repeal of the Don't Ask Don't Tell policy. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Homosexual Conduct (Admission) / AR 635-200, Paragraph 15-3b / JRB / RE-4 / Uncharacterized b. Date of Discharge: 13 March 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 February 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant's statement in reference to homosexual conduct, and the applicant's desire to be discharged from the military. The applicant has created a rebuttable presumption that indicates the applicant engages in, attempts to engage in, or has a propensity to engage in, or intend to engage in homosexual or bisexual acts. The applicant has the burden to present evidence to refute this presumption if the applicant desired to do so. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: On 13 February 2008, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 March 2008 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2008 / 6 years, 19 weeks b. Age at Enlistment / Education / GT Score: 23 / Some College / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 2 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form, dated 22 January 2008, reflects the applicant was counseled for failure to obey a general order or regulation (Article 92) and statement of homosexual conduct. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag), dated 24 January 2008, reflects the applicant was flagged for adverse action (AA) effective 24 January 2008. Developmental Counseling Form, dated 29 January 2008, reflects the applicant was counseled for summarize findings during a company commander's inquiry into a chapter 15 homosexual conduct and explains results and process for chapter 15 separation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two post service certificates; Department of Transportation private pilot student license; U.S. Department of Labor Electrical card. 6. POST SERVICE ACCOMPLISHMENTS: The is a mine foreman, industrial electrician, and working on a private pilot license. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (5) Chapter 15 (current regulation) provides explicitly for separation under 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 Army's best interest. 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. (6) Chapter 15 (rescinded) stated that active homosexuality was incompatible with military service and provided, in pertinent part, for the separation of members who actively engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. Rapid Action Review (RAR), dated 6 September 2011, rescinded Chapter 15. (7) Paragraph 15-4a (rescinded under RAR), prescribed when the sole basis for separation was homosexuality, a discharge under other than honorable conditions may be issued only if such characterization was warranted in accordance with Chapter 3, Section III, and if there was 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; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces. (8) Paragraph 15-4b (rescinded under RAR), stipulates in all other cases where no aggravating factors were present, the type of discharge would reflect the character of the Soldier's overall record of service. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "JRB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 15, paragraph 15-3b, Homosexual Admission. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable, and changes to the reentry eligibility (RE) code and narrative reason. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence of AMHRR shows the applicant was discharged with an uncharacterized characterization of service for admitting to being homosexual and the AMHRR does not indicate the presence of any aggravating factors as defined in AR 635-200. Current law and regulations now allow Soldiers who are homosexual to serve openly. Former Soldiers discharged under the old policy may request a change to the reason for their separation invoking the current standard. The Board considers any aggravating factors and, in their absence, will change the narrative reason for the discharge to Secretarial Authority, under the provisions of Chapter 15, AR 635- 200, with a corresponding separation (SPD) code of "JFF," and a reentry eligibility (RE) code of "1." The applicant contends, in effect, the applicant would like to reenlist. At the time of discharge, the applicant received an uncharacterized characterization of service due to homosexual conduct (admission). The applicant was processed for separation and was assigned an (RE) code of "4" based on the applicant service record or the reason for discharge. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The applicant contends, in effect, at the time of the discharge in 2008, DADT prohibited service in the military until the repeal in 2011. Discharge under DADT is no longer grounds for separation. Current laws and regulations now allow Soldiers who are homosexual to serve openly. Former Soldiers discharged under the old policy may request a change to the reason for their separation invoking the current standard. The Board considers any aggravating factors and, in their absence, will change the narrative reason for the discharge to Secretarial Authority. The applicant's record does not indicate any aggravating factors as defined in AR 635-200. The applicant contends, in effect, has become a mine foreman, industrial electrician, and is finishing a private pilot license. The applicant is in good health and eager to serve. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board's Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends that at the time of the discharge in 2008, DADT prohibited service in the military until the repeal in 2011. The Board considered this contention and determined that it is valid. Therefore, a discharge upgrade is warranted. (2) The applicant contends becoming a mine foreman, industrial electrician, and is finishing a private pilot license. The Board is happy to hear of the applicant's post-service accomplishments, but ultimately did not need to address the effect of applicant's success as a discharge upgrade was already warranted based on the repeal of the DADT policy. c. The Board determined the discharge is inequitable based on the repeal of the Don't Ask Don't Tell policy. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the Don't Ask, Don't Tell policy causing applicant's separation has since been repealed. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will change to RE-1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-1 e. Change Authority to: AR 635-200, Chapter 15 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210010268 1