Applicant Name: ????? Application Receipt Date: 070827 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: Throughout my 4 1/2 years of military duty I served with dignity and pride. I worked very hard and always strived to become a better soldier. I never got in any trouble and was always in good standings to my knowledge with my unit and commanders. Not being discharged with an honarable discharge saddend me. I feel that all the hard work, energy and time I put in for my country didn't mean anything when I received an "other than honorable discharge." It would mean alot to me and my family if my discharge was upgraded to an Honorable. II. Were Proper Discharge and Separation Authority procedures followed? Yes No Tender Offer: ????? See Attachments: Legal Medical Minority Opinion Exhibits III. Original Character of Discharge Unit CDR Recommended Discharge: Date: 040831 Discharge Received: Date: 041008 Chapter: 15 AR: 635-200 Reason: Homosexual Admission RE: SPD: JRB Unit/Location: A Co, 26th FSB, Fort Stewart, GA 31314 Time Lost: None Article 15s (Charges/Dates/Punishment): None Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Year/Month: 8204 HOR City, State: Bronx, NY Current ENL Date: 021105 Current ENL Term: 2 Years ????? Current ENL Service: 01 Yrs, 11 Mos, 04 Days ????? Total Service: 04 Yrs, 02 Mos, 28 Days ????? Previous Discharges: RA-0000711-021104/HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 55B10 Ammunition Specialist GT: 95 EDU: HS Grad Overseas: Germany Combat: None Decorations/Awards: NDSM, GWOTSM, ASR, OSR, PUC-ARMY V. Post-Discharge Activity Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 23 June 2004, the applicant stated in a memorandum to the unit commander and the first sergeant that prior to submitting this statement, she had complied with the Army homosexual "Don’t Ask, Don't Tell" policy. However, the applicant felt that she could no longer hide her sexuality and was informing them she was a lesbian. She further stated being tempted to engage in homosexual acts but never acted upon them because of military policy. On 31 August 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, AR 635-200, by reason of homosexual conduct for admitting she was a homosexual, with an honorable discharge. She was advised of her rights. On 1 September 2004, the applicant consulted with legal counsel, voluntarily waived consideration of her case by an administrative separation board, contingent upon her receiving a characterization of service of no less favorable than honorable. The applicant did not submit a statement in her own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander (1LT) reviewed the proposed discharge action and recommended approval of the separation action with an honorable discharge. On 14 September 2004, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge. The analyst noted that the unit commander initiated separation action under the provisions of Chapter 15, AR 635-200, for homosexual conduct, which is incorrect. The applicant admitted in a statement that she was a lesbian, which constitutes admission and the DD Form 214 item 28, narrative for separation reflects "homosexual admission." b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct. Army regulation states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, and if 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; 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. In all other cases, the type of discharge will reflect the character of the Soldier’s overall record of service. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review and the issues she submitted, the analyst determined that the applicant's characterization of service is improper. The evidence of record shows that the applicant consulted with legal counsel and waived her right to an administrative separation board contingent upon receiving an honorable discharge. The analyst noted that the applicant was entitled to have her case reviewed by an administrative separation board and that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board based on the conditional waiver she submitted nor an honorable characterization of service. Furthermore, denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization of service is improper. In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to fully honorable. However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 15 August 2008 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA VIII. Board Decision The discharge was: Proper Improper Equitable Inequitable The characterization of service was: Proper Improper Equitable Inequitable The narrative reasons were: Equitable Inequitable DRB voting record: Change 5 No change 0 - Character Change 0 No change 5 - Reason (Board member names available upon request) IX. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service is improper. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable. However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it. X. Board Action Directed No Change Issue a new DD Form 214 Change Characterization to: Change Reason to: None Other: NA RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: CHRISTINE U. MARTINSON DATE: 18 August 2008 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20070012014 ______________________________________________________________________ Page 1 of 6 pages