IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010800 APPLICANT’S REQUEST: upgrade of her general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 the Army wrongfully discharged her and labeled her as a derelict, based on homosexual acts; none of the accusations against her were ever proven. a. The applicant asserts, after all of the MST (military sexual trauma) she experienced in basic combat training (BCT) and advanced individual training (AIT), they ended up court-martialing her for things she did not do. She declares, "It's very wrong, and I'm asking for that not to be on my military record"; she was a good Soldier who took care of her people. b. The discharge took away the applicant's self-esteem and self-worth after she had reached a point where she was finally starting to belong somewhere. Her separation led to a spiral that was very hard on her life, and she now feels able to tell the Board what the separation did to her. She notes, as the Board reviews the forms and evidence, it should be evident what MST and PTSD (post-traumatic stress disorder) can do to your mind and body. She states, "My soul was stripped for something I didn't desire. No one deserved to be touch(ed) in ways I was while serving. I was very good at being in the Army." c. On her DD Form 149, in item 13 (Are Any of the Following Issues/Conditions Related to Your Request), the applicant has checked blocks for PTSD, Other Mental Health Issues, and Sexual Assault/Harassment. 3. On 11 January 2023, the Army Review Boards Agency (ARBA) requested the applicant provide medical documentation to support her claims of PTSD, MST, and other mental health issues. On 5 February 2023, the applicant responded: a. The applicant stated she had been trying to get her records for a few months, and the records office only told her, "We cannot give a time limit on when you will receive the records you ask for. We are short-staffed because of COVID, but are working on getting everything out." The applicant opined ARBA would have better luck in obtaining the applicant's medical records "because you have the power to do so." b. The applicant added, in any case, the Board could learn of her PTSD/MST conditions by reviewing her Department of Veterans Affairs (VA) claims file; she noted the VA had finally granted her a 70 percent service-connected disability rating. 4. A review of the applicant's service record shows the following: a. On 9 October 1979, the applicant enlisted into the Regular Army for 3 years. After completing BCT at Fort Dix, NJ, orders transferred her to Aberdeen Proving Ground for AIT in military occupational specialty 41C (Fire Control Instrument Repairer); she arrived at her AIT unit, on 29 November 1979. b. On 27 March 1980, the U.S. Army Criminal Investigation Command (CID) received a report that someone had observed Private (PV1)/E-1 and Private (PV2)/E-2 in bed together passionately kissing. During the course of investigation, CID also learned that the applicant and PV1 had allegedly engaged in sexual acts. c. On 9 April 1980, the applicant's AIT leadership promoted her to PV2. On 21 April 1980, the applicant's AIT unit reported her as absent without leave (AWOL); on 28 April 1980, the applicant returned to military control at her unit. d. On 6 May 1980, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for having been AWOL from 21 to 27 April 1980; (the applicant's service record does not explain the one day discrepancy between the unit's DA Form 4187 (Personnel Action) report and the date listed on the DA Form 2627 (Record of Proceedings under Article 15 (UCMJ)). The imposing commander's punishment included a suspended reduction from PV2 to PV1. e. At some point prior to 3 June 1980, the applicant's AIT commander notified her of his intent to separate her under the provisions of chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel); the document is not available for review. On 3 June 1980, after consulting with counsel, the applicant acknowledged counsel had advised her of the basis for the contemplated separation action and had informed her of her rights and the effect of waiving those rights. The applicant elected to personally appear, with counsel, before an administrative separation board to present her case for retention; she opted not to submit statements in her own behalf. f. On 26 June 1980, the applicant's AIT commander provided her a memorandum stating he intended to initiate separation action against the applicant, under the provisions of section V (Other Acts or Patterns of Misconduct), paragraphs 14-33a (1) (a) (Acts of Misconduct – Sexual Perversion – Lewd and Lascivious Acts) and 14-33a (3) (Homosexual Acts). g. On 24 July 1980, Two behavioral providers from Walter Reed Army Medical Center completed the applicant's psychiatric evaluation and rendered a DA Form 3822-R (Report of Mental Status Evaluation). (1) The behavioral providers stated the applicant's command had referred her due to a history of alleged homosexuality; accompanying the applicant were the results of the CID investigation, which included affidavits from four individual testifying that they had participated with the applicant in homosexual acts with other female personnel. (2) The evaluation affirmed that the applicant denied "at any time having participated in homosexual acts and states that rumors regarding her homosexuality are mere conjecture and have no basis in fact. She admits, however, to having numerous close homosexual female friends and to receiving many letters from these friends which could be construed as evidence of her own homosexuality. The Service Member states that she is exclusively heterosexual and denies any past psychiatric problems. The Service Member feels that she has been under stress for the past three months since she has been charged with homosexuality. She denies, however, significant depression or vegetative symptoms." (3) The listed diagnosis was: "Mixed Personality Disorder with Passive Aggressive and Sexual Orientation Disturbance Features." (4) The behavioral health providers stated they found no evidence of psychiatric illness that would warrant disposition through medical channels, and they cleared the applicant for any administrative action the command deemed appropriate. h. On or about 28 July 1980, an administrative separation board convened to determine whether the applicant should be retained or separated; the applicant and her counsel were present. (1) The board heard testimony from the investigating CID Special Agent (SA), the applicant's AIT commander, and current and former members of the applicant's unit. (a) The applicant's AIT commander testified that, as part of his investigation to determine why and to where the applicant had gone, the commander searched the applicant's wall locker and discovered numerous letters, an address book, and two photo albums filled with pictures; many of the pictures included the applicant and several of the female Soldiers in the unit. The commander stated, in reading through the letters and looking at the photos, there seemed to be indications that what CID was investigating might actually be true, so he turned over all that he had found to the CID. (b) The applicant's AIT commander additionally affirmed he had rated the applicant as a "good" Soldier. According to chapter 14 paperwork, the commander had four options: outstanding, good, fair, and poor; "Good meant above average, (the commander) guessed." (2) After deliberations, the administrative separation issued its findings; based on documentary evidence and testimony, the board concluded: * the applicant had engaged in lewd and lascivious and homosexual acts with PV1 * The applicant had engaged in homosexual acts with Ms. (former member of the applicant's AIT unit) * The applicant had engaged in homosexual acts with PVT * The applicant and PVT had established a closer than normal relationship * The applicant established a relationship with individuals subsequently identified as homosexuals * The evidence supported that the applicant had engaged in a possible homosexual relationship prior to her entry on active duty * The applicant's service record and testimony by her AIT commander and her Staff Sergeant supervisor showed she had performed her duties satisfactorily (3) The board recommended the applicant's separation with a general discharge under honorable conditions. i. On 26 September 1980, the separation authority approved the board's findings and recommendations and directed the applicant's general discharge under honorable conditions; on 1 October 1980, orders separated her accordingly. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 11 months and 16 days of her 3-year enlistment contract. (1) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed a marksmanship qualification badge. (2) Item 25 (Separation Authority) cites paragraph 14-33a (3), AR 635-200. (3) Item 28 (Narrative Reason for Separation) states, "Misconduct – Homosexual Acts, Moral or Professional Dereliction (includes homosexual acts)." 4. On 20 January 2023, the U.S. Army Crime Records Center provided a redacted copy of the abovementioned CID report. On 24 January 2023, ARBA forwarded a copy of the CID report to the applicant for review and the opportunity to submit a statement or additional evidence on her own behalf. On 5 February 2023, the applicant filed the following response: a. The applicant stated no one ever told her of a police report or an arrest; the documents ARBA sent her had no check marks indicating what she was charged with; and the people referenced in the report did not testify at her court-martial. b. As to the accusations of lewd sexual acts, the applicant affirms she is bi-sexual, not homosexual; she declares the documents are an act of discrimination. She continues, "When a person engages in sexual acts, with consent, it is not illegal. However, in the military, during my service time, anyone outside of identifying as a heterosexual was discharged." "Furthermore, it is during my service time that my MST was happening to me from your male staff members and (this) played a big part in my not trusting men or wanting to have any kind of relationship with them." c. "So with that being said, I am prepared and willing to do what I have to or speak with whomever I need to, at any time, to get this resolved...even if it means my Congressman or Senator." d. The applicant maintains she never saw the CID report and does not know what it actually says, but she contends it was the start of her medical downfall. The applicant denies that any lewd acts took place, and she is, by far, not a professional derelict. The applicant discloses that reliving what her separation process is painful and hurtful; it has brought back many memories of being molested while on active duty. e. The applicant points out that, in her service record, there should be a letter of achievement given to her by her BCT drill sergeant; the letter stated she had done well as a squad leader and as a Soldier. The applicant asks whether that letter was taken into consideration, because she feels it pertains directly and has a material effect on her case. Additionally, where is the photographic evidence the CID report talks about; she argues she is entitled to that evidence. f. The applicant writes, "I have been in mental health for a long time fighting every day of the trauma of it all to disappear, but it is never going to. Live with that and let me know how you feel. It does get better at times, but for the most part, the damage is done." 4. The applicant requests the upgrade of her general discharge under honorable conditions. a. During the applicant's era of service, commanders could, per paragraph 14-33a, AR 635-200, initiate separation action against Soldiers who had committed acts of misconduct, such as sexual perversion (including lewd and lascivious acts) and homosexual acts. (1) At the time, Department of the Army policy stated homosexuality was incompatible with military service. A person who committed homosexual acts seriously impaired discipline, good order, morale, and security of a military unit. Accordingly, when there was evidence of homosexual acts which would support action under paragraph 14-33a(3), the member had to be processed for discharge. (2) The regulation defined homosexual acts as, "bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act." (3) This provision further stipulated that members who had been involved in homosexual acts in apparently isolated episodes, stemming solely from immaturity, curiosity, or intoxication, normally were not to be processed for separation. (4) The regulation stated an under other than honorable conditions character of service was normally considered appropriate for misconduct separations; however, separation authorities had the latitude to issue either honorable or under honorable conditions character of service when merited. b. 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 based on the Army's "Don't Ask – Don't Tell" (DADT) policy or a similar earlier policy. (1) The guidance authorized Boards to make the below-listed amendments, but, for an 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 there could be no other aggravating factors, such as misconduct, in the applicant's record. (2) The authorized changes were: * revise character of service to honorable * change narrative reason for separation to "Secretarial Authority" and SPD code to "JFF" * amend RE code to an immediately-eligible-to-reenter (i.e. RE-1) c. Section II (Secretarial Authority), chapter 5 (Separation for Convenience of the Government) stated the separation of enlisted personnel for the convenience of the government was the prerogative of the Secretary of the Army and, except as delegated, was to be implemented only by the Secretary's authority. Such a discharge or release from active duty was to be based on the determination that separation was in the best interests of the Army. d. The ABCMR does not grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, her evidence and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. ? 7. MEDICAL REVIEW: a. The applicant requests an upgrade of her under honorable conditions, general, discharge. She contends her separation was associated with PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the regular Army on 9 October 1979; 2) On 27 March 1980, the U.S. Army Criminal Investigation Command (CID) received a report that someone had observed Private (PV1)/E-1 and Private (PV2)/E-2 in bed together passionately kissing. During the course of investigation, CID also learned that the applicant and PV1 had allegedly engaged in sexual acts; 3) On 21 April 1980, the applicant's AIT unit reported her as absent without leave (AWOL); on 28 April 1980, the applicant returned to military control at her unit; 4) On 6 May 1980, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for having been AWOL from 21 to 27 April 1980; 5) On 26 June 1980, the applicant's AIT commander provided her a memorandum stating he intended to initiate separation action against the applicant, under the provisions of section V (Other Acts or Patterns of Misconduct), paragraphs 14-33a (1) (a) (Acts of Misconduct – Sexual Perversion – Lewd and Lascivious Acts) and 14-33a (3) (Homosexual Acts); 6) On or about 28 July 1980, an administrative separation board convened to determine whether the applicant should be retained or separated and determined she should be separated with a general, under honorable conditions characterization; 7) On 26 September 1980, the separation authority approved the board's findings and recommendations and directed the applicant's general discharge under honorable conditions; on 1 October 1980, orders separated her accordingly. c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, JLV, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s casefile was a DA Form 3822-R (Report of Mental Status Evaluation), dated 25 July 1980, the showed the examiner diagnosed the applicant with Mixed Personality Disorder with Passive Aggressive and Sexual Orientation Disturbance Features, and cleared her for administrative separation. d. A review JLV showed the applicant is 70 percent service-connected for PTSD secondary to MST. A VA C&P Evaluation, dated 3 November 2022, showed the applicant reported MST characterized by being provided alcohol by a sergeant then awaking in her bunk naked and sore, believing she was raped. She was reportedly “too scared to go to medical as she was threatened by men often”. She also reported an instance of being pulled off guard duty by a sergeant who took her to his office and “laid down with his penis in the air”. She reportedly “felt that if she did not go along with it that she would get in trouble”. She reported being sexually assaulted and harassed on various other occasions during her service, to include daily being groped, grabbed, and receiving lewd comment. The examiner determined she met diagnostic criteria for PTSD secondary to MST. e. It appears the applicant first BH-related engagement with the VA occurred at the North Florida, in September 2007, whereby the applicant was seen for a psychiatric intake with complaints of depression and anxiety with a reported onset since “a young age” and which worsened since 2004, after losing her trailer and job subsequent to 3 hurricanes. She reported low mood, sleep disturbance, feelings of worthlessness, agitation, irritability, mood labiality, panic, and distrust of people. She also reported a history polysubstance abuse (e.g., alcohol and methamphetamine). She reported two instances of sexual assault by an older schoolmate at age 11 or 12 and being sexually assaulted by a GI when she was 13. She also reported a history of sexual harassment while in the military but denied sexual assault. She was diagnosed with Anxiety NOS and Substance abuse, with a rule-out of depression. The applicant was started on psychotropic medication and referred for outpatient therapy and medication management. Records showed the applicant attended a psychological intake on 18 October 2007, whereby she recounted the history shared during the psychiatric intake. Her diagnosis was amended to reflect Depression NOS, Anxiety Disorder NOS, with rule-out for MDD and Methamphetamine Abuse. She was also noted to have Cluster B personality traits. She was referred for outpatient treatment via therapy and medication management. f. The applicant is seeking upgrade of her under honorable conditions, general. she contends her request is related to PTSD/MST, and Other Mental Health Issues. A review of the records showed the applicant underwent a Report Mental Status Evaluation while on active duty and was diagnosed with Mixed Personality Disorder with Passive Aggressive and Sexual Orientation Disturbance Features and cleared for administrative separation. Records are void of any other BH diagnosis or treatment history for the applicant, during military service. Post-service records showed the applicant 70 percent service-connected for PTSD secondary to MST, MDD, Bi-polar Disorder, Borderline Personality Disorder, and Polysubstance Use Disorder. The applicant was discharged for misconduct characterized by engaging in homosexual acts. Although the applicant is service connected for PTSD and has other mental health diagnoses, her misconduct characterized by homosexuality is not mitigated by the disorders because misconduct characterized by engaging in homosexual acts is not natural sequela to either disorder. As it relates to the applicant’s request, given her discharge was specifically related to misconduct characterized by engaging in homosexual acts, per the Under SECDEF memorandum, dated 20 September 2011, DRB should grant requests, in such cases, to change narrative reason for separation to Secretarial Authority, Characterization to honorable, and RE code to immediately- eligible-to reenter. If during deliberations the Board considers the applicant’s misconduct characterized by going AWOL an issue, misconduct characterized by AWOL would be mitigated by the applicant’s diagnosis of PTSD, given the nexus between PTSD and avoidance of traumatic reminders. . Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 70 percent service-connected for PTSD secondary to MST. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. However, this advisor recommends the board consider HD/SA, as outlined in the paragraph below. The applicant is seeking upgrade of her under honorable conditions, general. she contends her request is related to PTSD/MST, and Other Mental Health Issues. A review of the records showed the applicant underwent a Report Mental Status Evaluation while on active duty and was diagnosed with Mixed Personality Disorder with Passive Aggressive and Sexual Orientation Disturbance Features and cleared for administrative separation. Records are void of any other BH diagnosis or treatment history for the applicant, during military service. Post-service records showed the applicant 70 percent service-connected for PTSD secondary to MST, MDD, Bi-polar Disorder, Borderline Personality Disorder, and Polysubstance Use Disorder. The applicant was discharged for misconduct characterized by engaging in homosexual acts. Although the applicant is service connected for PTSD and has other mental health diagnoses, her misconduct characterized by homosexuality is not mitigated by the disorders because misconduct characterized by engaging in homosexual acts is not natural sequela to either disorder. As it relates to the applicant’s request, given her discharge was specifically related to misconduct characterized by engaging in homosexual acts, per the Under SECDEF memorandum, dated 20 September 2011, DRB should grant requests, in such cases, to change narrative reason for separation to Secretarial Authority, Characterization to honorable, and RE code to immediately- eligible-to reenter. If during deliberations the Board considers the applicant’s misconduct characterized by going AWOL an issue, misconduct characterized by AWOL would be mitigated by the applicant’s diagnosis of PTSD, given the nexus between PTSD and avoidance of traumatic reminders. ? ? BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that 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 and available military records the Board, based upon a change in DoD policy relating to homosexual conduct concluded that making the changes to the applicant's DD Form 214 was appropriate. Therefore, relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 26 September 1980 showing in: * item 24 (Character of Service): Honorable * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reenlistment 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Section II (Secretarial Authority), chapter 5 (Separation for Convenience of the Government) stated the separation of enlisted personnel for the convenience of the government was the prerogative of the Secretary of the Army and, except as delegated, was to be implemented only by the Secretary's authority. Such a discharge or release from active duty was to be based on the determination that separation was in the best interests of the Army. c. Paragraph 14-33a (3) stated commanders could separate Soldiers who had committed acts of misconduct, such as sexual perversion (to include lewd and lascivious acts) and homosexual acts. (1) The regulation defined homosexual acts as, "bodily contact between persons of the same sex, actively undertaken or passively permitted by either or both, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation, or attempt to perform such an act." (2) This provision further stipulated that members who had been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication, normally were not to be processed for separation. 4. The Army implemented the Don't-Ask-Don't-Tell (DADT) policy in 1993 during the Clinton administration; this policy banned the military from investigating service members about their sexual orientation. Service members could 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. 5. A memorandum by the 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). a. The memorandum states that, effective 20 September 2011, Service DRBs and BCM/NRs should normally grant requests for upgrade of an adverse character of service and make the following changes: * change narrative reason for separation to "Secretarial Authority" and SPD code to "JFF" * revise character of service to honorable * amend RE code to an immediately-eligible-to-reenter (i.e. RE-1) b. For Board to grant upgrades, the circumstances of an applicant's separation must meet the following criteria: * 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 c. The memorandum further states that, although Boards must evaluate each request on a case-by-case basis, the award of an honorable or a general discharge normally indicates the absence of aggravating factors. d. The memorandum 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, Boards should not consider the issuance of a discharge under DADT (or prior policies), by itself, as constituting an error or injustice sufficient to invalidate an otherwise properly taken discharge action. 6. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. `a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010800 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1