IN THE CASE OF:	

		BOARD DATE:	3 September 2009  

		DOCKET NUMBER:  AR20090000444 


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 correction of his NGB Form 22 (Report of Separation and Record of Service), effective 12 December 2007, to show the reason for his separation as expiration of his term of service (ETS).

2.  The applicant states that his administrative discharge for homosexual conduct was inappropriate because it was not processed prior to his ETS.  He refers to Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 2-16, which states that the effective date of discharge is 2400 hours on the date of notice of discharge.  His ETS was 4 January 2008 but notification was not made until sometime after 8 January 2008.  A Soldier may not be retained beyond his ETS for the purpose of processing an administrative separation.  He contends that the reason for his separation should be changed from homosexual conduct to ETS and that his reenlistment eligibility (RE) code should be changed from  RE 4 to RE 1. 

3.  The applicant provides, in support of his application, copies of his prior service DD Form 214 (Certificate of Release or Discharge from Active Duty), an e-mail from ARNG Administration office, page 16 of Army Regulation 135-178, and discharge orders dated 10 January 2007 and 3 January 2008. 

CONSIDERATION OF EVIDENCE:

1.  On 2 February 1999, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 75H (Personnel Specialist).  He attained the rank of sergeant, pay grade E-5 and was released from active duty on 1 February 2003.  He had completed 4 years of creditable active duty service.  

2.  On 29 April 2003, the applicant enlisted as a sergeant, pay grade E-5, in the Army National Guard for 3 years.  On 10 April 2005, he extended his enlistment for a period of 9 months, to 3 January 2007.

3.  Orders 010-026, Oklahoma Army National Guard, dated 10 January 2007, discharged the applicant from the Army National Guard and as a Reserve of the Army effective 3 January 2007.

4.  On 5 January 2007, the applicant enlisted in the Army National Guard for 
1 year beginning in the rank of sergeant, pay grade E-5.  

5.  A DA Form 4856 (Developmental Counseling Form), dated 27 September 2007, indicates that the applicant admitted to his commander that he was homosexual.  He wanted to address this issue earlier but there was no time.  Only 3 days earlier he had been notified to report for mobilization.  The commander indicated that the applicant would receive complete counseling and afforded the opportunity to confer with a Judge Advocate General (JAG) officer.  He was told the discharge process would be started.  Both the applicant and the commander signed the DA Form 4856. 

6.  A DA Form 3822 (Report of Mental Status Evaluation) dated 1 October 2007, indicates that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  The applicant reported a homosexual preference and lifestyle.  

7.  On 4 November 2007, the applicant submitted a request for conditional waiver and separation under the provisions of Army Regulation 135-178.  He waived his right to a hearing before an administrative separation board on the condition that his separation would be characterized as honorable.

8.  On 12 December 2007, the appropriate authority approved the applicant's separation.  Accordingly, he was discharged effective 12 December 2007.  He had completed 11 months and 8 days of creditable service this period.  His service was characterized as honorable.  The NGB Form 22 shows the reason for separation as homosexual conduct with a corresponding RE code 4.

9.  Orders 003-001, Oklahoma Army National Guard, dated 3 January 2008, discharged the applicant from the Army National Guard and as a Reserve of the Army effective 12 December 2007.  The orders indicate that authority was verbally confirmed on 12 December 2007.

10.  Electronic mail dated in January 2008 indicates that a member of the Oklahoma Army National Guard inquired about the status of the applicant's discharge, stating that his ETS was 4 January and wanting to know if he had been discharged.  A response, dated 8 January 2008, stated that he had been discharged effective 12 December 2007 and that a memorandum of notification was pending signature.  On 25 January 2008, a JAG officer, Oklahoma Army National Guard, stated that since the applicant's discharge had not been delivered prior to the date of his ETS, he had ETS'd.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, Army National Guard, Arlington, Virginia.  The opinion stated that the applicant had admitted to being gay and was accordingly processed for administrative separation under the provisions of Army Regulation 135-178.  The opinion recommended denial of the applicant's request to change the reason for his separation.

12.  On 16 July 2009, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response was received.

13.  National Guard Regulation 600-200 (Enlisted Management), paragraph 8-32, states all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures.  This regulation refers to Army Regulation 135-178, chapter 3, section II (Notice under the Notification Procedure).  National Guard Regulation 600-200, paragraph 8-28d states that Soldiers otherwise eligible for discharge on expiration of their service obligation will not be retained to complete an involuntary administrative separation action per this regulation.  On the other hand, if the Army does not affirmatively act to discharge a Soldier and the Soldier does not demand discharge, but rather remains on duty and accepts pay and benefits, the military status of that Soldier continues.  Paragraph 8-29 states the effective date of discharge is 2400 hours on the date of notice of discharge.  Notice of discharge may be either actual or constructive.

14.  Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 2-16, states the effective date of discharge is 2400 hours on the date of notice of discharge.  When discharge is for change of military status, the effective date of the order will be the day prior to the date of the Soldier's entry into a new military status.  Paragraph 2-17 requires that notice of the discharge be provided through either an order or a certificate of discharge that is actually or constructively served on the applicant.  Constructive service occurs either by sending a copy of the order to the applicant's unit or, if the Soldier is assigned to the Individual Ready, Standby, or Retired Reserve, by mailing the order to the Soldier's last address.  Both forms of constructive service require an annotation on the back of the form indicating the reason why the Soldier could not be served, the date the unit received the notification, and the date the order was mailed to the Soldier.  Additionally, the annotated order is to be filed in the Soldier's Official Military Personnel File (OMPF).

15.  National Guard Regulation 600-200 provides, in pertinent part, the reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both. These reasons may be used for separation from the State ARNG only.  It provides an RE-1 for discharge due to ETS unless an approved bar to reenlistment or extension is in effect, or the Soldier is ineligible for extension due to overweight, failure of the Army Physical Fitness Test, a positive urinalysis, or is barred at the time of ETS. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his administrative discharge for homosexual conduct was inappropriate because it was not delivered to him prior to his ETS.  

2.  The evidence of record shows that the administrative separation was initiated on 27 September 2007 and completed on 12 December 2007, when the separation authority approved the discharge.  On 27 September 2007, 3 days after he had been notified of pending mobilization, the applicant informed his commander that he was a homosexual.  He, in effect, acknowledged this action on 4 November 2007, when he requested a waiver of an administrative separation board. 

3.  However, National Guard Regulation 600-200 and Army Regulation 135-178 require that notice of the discharge be provided through either an order or a certificate of discharge that is actually or constructively served on the applicant.  There is no evidence showing that this requirement was met at any time prior to his ETS.

4.  Notwithstanding the advisory opinion, which failed to fully address the ETS issue, the applicant's records should be corrected to show that he was separated effective 4 January 2008, due to ETS.  Accordingly, his reenlistment code should be changed to RE-1. 



BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

   a.  voiding his discharge effective 12 December 2007 from the Oklahoma Army National Guard and the Reserve of the Army;

	b.  discharging him effective 4 January 2008 due to expiration of his term of service and showing his reenlistment code as RE-1. 

	c.  correcting his NGB Form 22 and filing a copy of it and his corrected discharge orders in his OMPF; and

	d.  removing from his OMPF and Military Personnel Records Jacket all documentation pertaining to his 12 December 2007 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)                                         AR20090000444





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ABCMR Record of Proceedings (cont)                                         AR20090000444



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