BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20140021535 


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 an upgrade of his under other than honorable conditions discharge.  He also requests, in effect, that all awards he earned be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states he believes an error was taken out of context from a field exercise drill.  

3.  He provides his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 18 October 1983.  
3.  Permanent Orders Number 175-25, issued by Headquarters, 82d Airborne Division, dated 24 September 1986, awarded the applicant the Driver's Badge for the period of service “11 September 1986.”

4.  On 21 June 1988, the applicant's commander notified him that he was recommending him for discharged under the provisions of chapter 15, Army Regulation 635-200 (Enlisted Personnel - Personnel Separations) with service characterized a under other than honorable conditions.  The applicant was advised of his rights.  The commander cited the specific bases for his recommendation as three sworn statements describing the applicant's attempts to engage in and solicit homosexual acts.

5.  On 21 June 1988, the applicant acknowledged receipt of his commander's notification letter.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant requested consideration of his case by an administrative separation board, personal appearance before an administrative separation board, and to consult with and be represented by counsel.  

6.  On 28 July 1988, the applicant, a sergeant (SGT)/E-5, appeared before an administrative separation board with his counsel.  The board heard testimony from three subordinate Soldiers and the unit first sergeant (1SG) who stated the following:

   a.  A specialist (SPC)/E-4:  "I have been in the unit for 11 months; I have known [the applicant] for 10 months or so.  He has once engaged in homosexual conduct in my presence.  One night last October me and [the applicant] and two other friends were in my room.  We were sitting in my room just drinking beers, and I fell asleep.  When I woke up the other two guys were sleeping and [the applicant], well I don't know how to put it, but he was 'sodomizing me.'  I pushed him back and he tried to make an explanation, but I cut him off and just said leave."
   
   b.  Another SPC/E-4:  ". . . I have known [the applicant] about the full 2 years, he is in the platoon with me – he was in the 1st squad, I was in the 2nd squad.  [The applicant] has engaged in homosexual acts in my presence.  The first incident happened close to a year ago.  He came in my room one night after work.  He had been drinking and brought 2 beers in his hand, and asked me if I wanted to drink with him.  I said no. . . I had on a T-shirt and a pair of shorts and he touched me in my chest and asked 'how does it feel?'  I just shook my head, I didn't know what to say.  He reached down and grabbed me between the legs and asked 'how does that feel?' I pushed him away . . . "
   
   c.  A private first class (PFC)/E-3:  ". . . [the applicant] was my squad leader.  During the time I have been in the unit, the only homosexual behavior that [the applicant] showed was what he said to me.  He asked me if I liked ?to be sodomized? and I told him yes.  I though he was referring to women.  This happened down in the motor pool.  . . . After that, we were back at the picnic table by the coke machine and [the applicant] said again 'so you like to be sodomized, I know a place out in the wood line.?"  
   
   d.  The 1SG:  "I don’t have any reason to believe that these people would lie about the incidents concerning [the applicant].  They are all from different squads and platoons.  I don’t know any bad blood or animosity between [the applicant] and these troops.  None of them are having disciplinary problems.  . . . Due to the incidents that have happened in the unit and the statements that I have read I believe that [the applicant] is a homosexual.  . . . I do not think that alcohol is the reason for the incidents between [the applicant] and these Soldiers.  [The applicant’s] drinking has not affected his duty performance, his performance on the job has been okay."  During cross examination he stated, “[the applicant] has been a strong performer other than the two DUI’s [driving under the influence].  The chain of command believes the Soldiers are telling the truth. . . . There have been allegations times before about a year and half ago." 
   
7.  The applicant testified that he was promoted to SGT within 3 years of his enlistment.  The 1SG informed him of the allegations and proposed chapter separation after a field training exercise.  He stated that the statements made by the Soldiers were false.  He does not remember drinking in the barracks.  He does remember going to a party off post but does not remember making any homosexual advances toward any of the three Soldiers at any point in time.  Under cross examination he stated he did not touch or perform homosexual acts with anyone.  He has dated women and had a serious girlfriend before entering the military.  He does not even consider himself bisexual.  He stated he was an individual guy who didn’t hang around the barracks.  He did admit that he drank and had a DUI incident.  He has been under a lot of pressure since he was informed of the chapter proceedings.  He directly asked the board to let him finish his remaining commitment and then be discharged honorably.  He concluded by stating:  " . . . this is a very significant event in my life.  I know that the board has to decide whether or not I am a homosexual."

8.  There was no testimony provided from other Soldiers in support of the applicant.  He did provide character witness statements to the board from his family. 

9.  The board carefully considered the evidence concerning the applicant and found that he engaged in, attempted to engage in, or solicited another to engage in homosexual acts.  In view of the findings, the board recommended that the applicant be discharged from the U.S. Army with the issuance of an under other than honorable discharge for the following reasons:

   a.  He attempted, solicited or committed a homosexual act with a subordinate in circumstances that violated the customary military superior-subordinate relationship.

   b.  He attempted, solicited or committed homosexual act(s) at other locations subject to military control such as company barracks and the unit motor pool.  His actions likely had an adverse impact on the discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.
   
10.  On 23 August 1988, the separation authority approved the findings and recommendation of the administrative board and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15 (Homosexuality) with an under other than honorable conditions discharge.

11.  He was discharged on 2 September 1988.  His DD Form 214 shows he completed 4 years, 10 months, and 15 days of net active service and contains the following entries in:

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the:

* Army Service Ribbon
* Army Good Conduct Medal (1st Award)
* Parachutist Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar 

* item 24 (Character of Service):  Under Other Than Honorable Conditions

* item 25 (Separation Authority):  Army Regulation 635-200, paragraph 
15-3a
* item 26 (Separation Code):  JRA
* item 27 (Reentry Code):  4
* item 28 (Narrative Reason for Separation):  Engaged, Attempted to Engage In, or Solicited Another to Engage In Homosexual Acts

12.  There is no evidence to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
   
   c.  Paragraph 5-3 establishes policy and prescribes procedures for separating members under Secretarial Authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  Paragraph 15-3a provides for the separation of members who engaged in or solicited another to engage in a homosexual act.

	d.  Paragraph 15-4 states that when the sole basis for separation is homosexual conduct, a discharge under other than honorable conditions may be issued only if such characterization is warranted and if, in pertinent part, there is a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act with a subordinate in circumstances that violate customary military subordinate relationships. 

14.  The "Don't Ask, Don't Tell (DADT)" policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

15.  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" (Separation Program Designator (SPD) Code JFF))
* characterization of the discharge to honorable
* the Reentry Eligibility code to an immediately-eligible-to-reenter category

16.  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

17.  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.

18.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The evidence of record shows DADT was repealed effective 20 September 2011 and his discharge occurred prior to the DADT policy.  Additionally, his discharge proceedings for engaging, attempting to engage in, or soliciting another to engage in homosexual acts were conducted in accordance with law 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.

3.  His record of service shows he appeared before an administrative separation board and the board heard testimony from several subordinate Soldiers who confirmed the actions that led to his discharge.  Accordingly, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant be discharged for homosexuality with the issuance of an under other than honorable conditions discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The Undersecretary of Defense issued a memorandum on 20 September 2011 indicating that corrections boards should normally grant requests for discharge upgrades when the underlying reason for separation was the DADT policy.  An important condition on applying this guidance, however, is the absence in the applicant’s record of aggravating factors, such as misconduct.  In applicant’s case, his record indicates that the homosexual conduct that led to his separation was accomplished by, in one instance, a sexual assault (grabbing the genitalia of another Soldier subsequent to the Soldier indicating his lack of consent) and in another instance a sexual assault upon an unconscious Soldier (performing oral sex on a sleeping Soldier).  It also appears the applicant engaged in these assaultive acts when he was an NCO and his victims were junior in rank to him, thus exacerbating the coercive nature of applicant’s misconduct.  Given these aggravating factors, the Board finds that an upgrade in this case is not warranted.

5.  However, in reference to award of the Driver's Badge, orders confirm that he was awarded this badge.  Therefore, his DD Form 214 should be corrected to show the Driver's Badge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X______  __X______  _X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of his DD Form 214 the Driver's Badge.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the board recommends denial of so much of the application that pertains to upgrading his discharge.



      _______ _   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)                                         AR20140021535



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ABCMR Record of Proceedings (cont)                                         AR20140021535



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