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ARMY | BCMR | CY2003 | 2003088439C070403
Original file (2003088439C070403.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 04 DECEMBER 2003
         DOCKET NUMBER: AR2003088439


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Ms. Deborah L. Brantley Senior Analyst


The following members, a quorum, were present:

Mr. Walter Y. Morrison Chairperson
Mr. Allen L. Raub Member
Mr. Kenneth W. Lapin Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE :

1. The applicant requests that the narrative reason (homosexual admission) for his 2001 separation from active duty be removed from his separation document.

2. The applicant states that he wishes to protect his privacy and maintains that it is no ones business why he left the Army.

3. In a self-authored statement, the applicant states that he took two pictures of his roommate on 17 and 18 December 2000 but that his commander did not know anything about it until 22 December 2000. He states that the only reason his transition orders are dated in October 2000 was so that he could “get home quicker.”

4. The applicant provides a copy of his separation orders and his self-authored statement in support of his request.

CONSIDERATION OF EVIDENCE:

1. Records available to the Board indicate that the applicant entered active duty on 9 November 1999 when he was 22 years old. He was trained as a food service specialist and promoted to pay grade E-3 in November 2000.

2. Documents associated with his administrative separation action were not in records available to the Board. However, a summary of the separation action was contained in documents prepared by the Army Discharge Review Board which denied the applicant’s petition to change the reason for his discharge in October 2001 and again in May 2002.

3. The Army Discharge Review Board’s summary notes that his unit commander notified the applicant on 1 February 2001 that actions were being initiated to administratively discharge the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 15, by reason of homosexual admission. The applicant consulted with legal counsel and acknowledged receipt of the proposed separation.

4. The Army Discharge Review Board’s summary notes that the applicant admitted his homosexuality to his first line supervisor and to other soldiers.

5. On 14 February 2001 the applicant was honorably discharged under the provision of Army Regulation 635-200, paragraph 15-3b. Item 25 (Separation Authority) on his Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty) reflects that authority and item 28 (narrative reason for separation) reflects “Homosexual Admission.”
6. There is no indication, in available records, which confirms why the applicant’s transition orders reflect a publication date of 25 October 2000. The orders do, however, contain the appropriate 14 February 2001 separation date.

7. Army Regulation 635-200, Chapter 15, provides for the administrative separation of soldiers for homosexual conduct. Paragraph 15-3b specifically addresses soldiers who have made a statement that he/she is a homosexual or bisexual, or words to that effect. It further notes that a statement by a Soldier that he/she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

8. Army Regulation 635-5 establishes the policies and provisions for the preparation and distribution of the Department of Defense Form 214. In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the Department of Defense Form 214. Item number 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority.

9. Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. It indicates that "homosexual admission” is the appropriate narrative reason for discharge when the authority is "AR 635-200, Para 15-3b.”

10. Army Regulation 635-5 also notes that the Department of Defense Form 214 is prepared in eight copies. Copy 1 and copy 4 are given to the separating Soldier. Copy 1 does not contain that part of the separation document titled “Special Additional Information (for use by authorized agencies only) which contains items 25 and item 28. Copy 4 of the form does contain that information.

DISCUSSION AND CONCLUSIONS :

1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations.

2. The narrative reason reflected on copy 4 of the applicant’s separation document was appropriate considering the basis for his administrative separation. While he may believe that information somehow violates his privacy, it should be noted that copy 1 of his separation document did not contain that information and that the applicant could utilize that copy in those instances when he did not wish to share the basis for his separation.

3. Although there is no evidence, which confirms why the applicant’s transition orders were dated in October, when his separation action was not initiated until February, the date of the orders does not create any error or injustice in the reason for the applicant’s separation.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ WTM _ __ ALR __ __ KWL ______ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ___Walter T. Morrison____
                  CHAIRPERSON




INDEX

CASE ID AR2003088439
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20031204
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 110.00
2.
3.
4.
5.
6.


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