BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130003186


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision regarding his request for an upgrade of his discharge, from an undesirable discharge to an honorable discharge, based on the repeal of the "Don’t Ask, Don’t Tell (DADT)" policy.

2.  The applicant states:

   a. He has always denied any homosexual activity or behavior throughout his entire life.

   b. His discharge was the product of racial discrimination he suffered during his service in Greenland.  He was the only African-American living in "their" all-white barracks, and the white Soldiers conspired to get rid of him by making untrue allegations against him involving homosexual activity.  Military life in the 1960s was just as segregated and unjust toward African-Americans as it was in the United States.

   c. He married 3 times and raised 4 children from those marriages.  He was raised to believe a man married and loved a woman, and from that union children were conceived.  All of his children were conceived after marriage.  

   d. He has led a just life in the years following his discharge from the Army.  He has worked hard, paid his taxes, and was never involved with the law.  He worked for the Greyhound Corporation for over 40 years, a testament to his "honorable character of conduct."  
3.  The applicant provides:

* 14 separate, unsigned, third-party character statements
* an extract of an article, titled "Former U.S. Military Service Members Discharged for Being Gay Will Receive Severance Settlement"
* Exhibit A – ABCMR Docket Number AR20120001509, dated 2 October 2012
* Exhibit B – DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 18 January 1962
* Exhibit C – a Recognition of Service certificate he received from the Greyhound Corporation, in grateful appreciation for 10 years of dedicated service, dated 1999
* Exhibit D – a photograph of an African-American man in uniform, purportedly to be him

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120001509, dated 2 October 2012.

2.  The applicant provides 14 separate, unsigned, third-party character statements which were not previously considered by the Board.  Therefore, this new evidence warrants consideration by the Board.

3.  On 19 January 1962, after 1 year, 11 months, and 28 days of honorable service in the U.S. Army Reserve, the applicant enlisted in the Regular Army.

4.  On 18 April 1964, an incident occurred between the applicant and a fellow Soldier in the enlisted member quarters (EMQ) of the 4th Missile Battalion, 55th Artillery Regiment, Thule Air Base, Greenland.  

5.  On 18 May 1964, the applicant's immediate commander stated in writing that on 18 April 1964, Private First Class (PFC) Bxxxxx, an enlisted Soldier in his unit, came to his quarters to discuss a homosexual act that had occurred in the EMQ that evening.  After being informed of his rights under Article 31 of the Uniform Code of Military Justice (UCMJ), PFC Bxxxxx informed the commander that the applicant had forced him to submit to a homosexual act, and that a number of men in the EMQ had knowledge of, or had witnessed various portions of the act. 

6.  The allegation was investigated by the Office of Special Investigations (OSI), and as a result of witness statements obtained from unit members regarding the incident, investigators concluded there was sufficient evidence to support the applicant's separation from the Army for homosexual acts.  Consequently, the applicant's command initiated separation action against him for homosexuality.  The applicant acknowledged the separation action and waived his rights to military counsel, a board of officers, and to make a statement on his own behalf.

7.  On 30 July 1964, the applicant was discharged from the Army under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality) and given an Undesirable Discharge Certificate.  His DD Form 214 shows his discharge was characterized as under other than honorable conditions.  

8.  He provides 14 separate, unsigned, third-party character statements.  Each of these statements is nearly identical, except that the writer's relationship to the applicant changes.  Each statement states the applicant never exhibited homosexual tendencies; however, none of the writers attest to having served with the applicant, or to having been stationed in Greenland at the time the applicant was discharged.

9.  Army Regulation 635-89, in effect at the time, prescribed the authority and set forth the policies and procedures for the disposition of Soldiers who were homosexuals, who engaged in homosexual actions, or were alleged to have engaged in such acts.  It stated personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity, and their prompt separation was mandatory.  The following classes of homosexuality were defined as follows:

   a. Class I homosexual acts are those cases which involved an invasion of the rights of another person, as when the homosexual act was accompanied by assault or coercion, or where the person involved did not willingly cooperate in or consent to the act.

   b. Class II homosexual acts as those cases in which personnel had engaged in one or more homosexual acts not within the purview of Class I during military service.  Class II also included all cases falling within Class I in which it was determined not to prefer charges or, if charges were preferred, not to refer them to a court-martial for trial.

   c. Enlisted members whose cases were processed under this regulation in the Class II category normally would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate could be issued when an individual had been awarded a personal decoration or if warranted by the particular circumstances in a given case.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

   a. Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

   b. Paragraph 3-7b states that an under honorable conditions (general) discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and

   c. Paragraph 3-7c states that an under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  At the time of the applicant's service, an undesirable discharge was considered appropriate.

11.  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 Discharge Review Boards (DRBs) and 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).

   a. 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" with a Separation Program Designator (SPD) Code of "JFF"
* characterization of service to honorable
* the RE code to an immediately-eligible-to-reenter category

   b. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:

* the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct

   c. The memorandum further states that although each request must be evaluated on a case-by case basis, the award of an honorable or GD should normally be considered to indicate the absence of aggravating factors.

   d. 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 was 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 that same period 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded, from an undesirable discharge to an honorable discharge, based on the repeal of the DADT policy.

2.  In support of his contention, the applicant submitted 14 separate, unsigned, third-party character statements.  Each of these statements is nearly identical, except that the writer's relationship to the applicant changes.  None of the writers attest to having served with the applicant, or to having been stationed in Greenland at the time the applicant was discharged; therefore, none of the writers can definitively say the allegations that resulted in the applicant's discharge were untrue.  Additionally, the submitted statements do not substantiate his contention that his discharge resulted from racial discrimination.

3.  While the applicant may not be a homosexual, the evidence shows he did in fact engage in a homosexual act with a fellow Soldier and the act was accomplished by force or coercion.  The forcible nature of the act constitutes misconduct.  

4.  The applicant was discharged under the provisions of Army Regulation     635-89, by reason of homosexuality, with an under other than honorable conditions discharge.  His discharge for homosexuality complied with the laws and regulations in effect at the time.  The characterization of his service was commensurate with the reason for his discharge in accordance with the governing regulations in effect at the time.
5.  The law has since changed and the DADT law has been repealed, and current standards may be applied to previously-separated Soldiers as a matter of equity, but only when appropriate should Soldiers separated due to homosexuality now have their reason for discharge and characterizations of service changed.

6.  For the above upgrade to be warranted, two 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.  In the applicant's case, there were aggravating factors in the form of misconduct.  As such, he does not qualify for an upgrade under the DADT policy.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120001509, dated 2 October 2012.




      ___________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.
ABCMR Record of Proceedings (cont)                                         AR20120001509



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ABCMR Record of Proceedings (cont)                                         AR20130003186



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