IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090005496 


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 that his narrative reason for separation be changed from homosexual admission.

2.  The applicant states that he made a mistake and that he did not speak the truth at the time that he was in the Army.  He states that he was not in his right state of mind at the time that he admitted to being a homosexual and that he has made too many mistakes in his lifetime to not be able to fix one of his mistakes.  He asks that he be given a chance as he believes that he can make everyone proud.

3.  The applicant provides in support of his application, an undated statement addressed “To Whom This May Concern”; three letters of recommendation dated 6 January 2009, 8 January 2009 and 20 January 2009 from associates attesting to his good character, maturity, work ethics, and post service conduct; a copy of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) dated 5 January 2009; a letter from doctor (Board Certified by the American Board of Psychiatry and Neurology) dated 10 December 2008; a picture of him and his family; and copies of his children’s Certificates of Birth.

CONSIDERATION OF EVIDENCE:

1.  On 2 October 2002, the applicant enlisted in the Regular Army in Montgomery, Alabama, for 3 years, in the pay grade of E-1.  

2.  On 20 October 2002, the applicant was counseled for conduct unbecoming a Soldier.  According to the information contained in the Developmental Counseling Form, the applicant told another Soldier that he looked like another male that he previously dated and that he (the applicant) was bisexual.  The applicant was told that his behavior was not proper and he was reminded that he received a class on sexual harassment and equal opportunity.  He was told that there was really no excuse for his actions and that he was being sent to the community mental health services for an evaluation.  The applicant indicated that he agreed with the information contained in the Developmental Counseling Form.

3.  The applicant was evaluated by a psychiatrist on 25 October 2002 and he determined that the applicant needed expeditious separation and that he was not motivated to continue in the military service.  The attending psychiatrist diagnostic finding was “adjustment disorder with depressed mood.”  The applicant was cleared for separation under the provisions of Army Regulation 635-200, chapter 15.

4.  On 30 October 2002, the applicant was counseled for failure to complete/attend a mandatory training event on 29 October 2002.  He was informed that he must complete all mandatory training to complete basic training and advanced individual training.  He was also told that he must complete all missed training at a later date and that failure to do so would result in his being chaptered out of the Army, restarted or recycled.  The applicant indicated that he agreed with the information contained in the Developmental Counseling Form.

5.  On 5 November 2002, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 15, for homosexual conduct.  His commander cited the statement that the applicant made to the other Soldier that he was bisexual as the basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification on 5 November 2002 and, after being afforded the opportunity to consult with counsel, the applicant waived his rights and he opted not to submit a statement in his own behalf.  

6.  The appropriate authority approved the recommendation for discharge on 7 November 2002 and he directed that the applicant be furnished an entry level separation and that his character of service be uncharacterized.  Accordingly, on 18 November 2002, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3B, for homosexual admission and his character of service was uncharacterized.


7.  On 3 January 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for a change of the character of his service to general and a change to his narrative reason for separation.  On 7 April 2008, the ADRB denied his petition to change the character of his service and to change his narrative reason for his separation.

8.  In the undated statement that the applicant submitted in support of his application, he explains the circumstances which he contends led to his enlistment in the RA and the current circumstances surrounding his life.  The three letters of recommendation that he submitted are written by some of his associates attesting to his good character, maturity, work ethics, and post service conduct.  The letter that he submitted from the doctor provides the circumstances surrounding his enlistment in the RA, the doctor’s assessment of the applicant and the doctor’s diagnosis of “hypercholesterolemia, s/p vasectomy, history of hemorrhoidal disease.”  The doctor’s treatment plan and recommendation is reflected within the letter as the applicant “showed no evidence of a definite diagnosis for mental illness or personality disorder.  Retrospectively, the cause of his discharge from active duty from the Department of the Army was not justified by the findings.”

9.  Army Regulation 635-200, chapter 15, provides for the separation of Soldiers for homosexual conduct.  It states that a Soldier will be discharged if the Soldier has made a statement that he/she is a homosexual or is bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

10.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service, as it exists on the date of release from active duty or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for separation reflected on his DD Form 214 should be changed from homosexual admission.

2.  His contentions have been noted and the documents that he has submitted in support of his application have considered.  However, they are not sufficiently mitigating to warrant the relief requested.



3.  The applicant’s records show that he stated he was bisexual when he was in the Army and as a result, he was counseled for conduct unbecoming a Soldier.  The fact that he now contends that the statement he made was a mistake is not a basis for changing his narrative reason for separation.  

4.  At the time his DD Form 214 was prepared, the applicant had declared that he was bisexual and in accordance with the applicable regulation, his DD Form 214 was prepared to reflect his service, as it existed on the date of his discharge.  There is no evidence in the available records that shows that he ever made any declarations to the contrary while he was in the Army.  Therefore, the narrative reason for separation that is currently reflected on his DD Form 214 is correct.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20090005496



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ABCMR Record of Proceedings (cont)                                         AR20090005496



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